Does New York City Receive Enough in Homeland Security Grant Funds?

With last Saturday’s failed bombing in Times Square, the issue of federal funding to support New York City’s homeland security efforts has once again been raised in the news media. What is clear from the events in Times Square is that New York City remains at the top of the terror target list. With the distinction of being target number one comes significant funding needs to enhance and maintain security. The question is, is New York getting enough, and if not, how much federal funding assistance should New York get? The answer is complicated, but in short, the city likely needs more funding and the allowable uses of those funds should be re-examined as should the federal government’s budgeting methods for such grant funds.

THE CITY-STATE

While New York is unique in terms of the level of risk it faces and its resulting security needs, it is also unique in several other respects. The size and density of the city (over 8 million people spread across 305 square miles) and its agencies is simply unprecedented at the local and state level, which also helps drive costs up given the sheer magnitude of resources to be funded. The NYPD’s roughly 34,500 officers is more than double the second largest department in the U.S. in Chicago, which has approximately 13,000 officers. Unlike any other major city, New York is actually comprised of five counties, which are more often referred to as boroughs with each borough a part of the city government. Cities such as Los Angeles, Houston and Chicago are part of a larger, independent single county – Los Angeles County, Cook County and Harris County respectively.

SOURCES OF FUNDING

New York City, as with other major urban areas such as Los Angeles and Washington, DC, receives federal homeland security grant funds from a variety of programs. These include the Port Security Grant Program, (PSGP), the Transit Security Grant Program, (TSGP), the State Homeland Security Program (SHSP) and the Urban Areas Security Initiative (UASI).

It is the UASI program that often gets the most attention since it is the largest funding source for cities like New York. From fiscal year (FY) 2003 through FY 2009, New York has received approximately $951 million in UASI funds. While there have been some wild fluctuations in the past, on average, New York’s share of UASI funds has been $135 million per year (14%), on top of the hundreds of millions of dollars from the other grant programs. No other jurisdiction in the U.S. comes close to this level of funding.

UASI FY03: $596,351,000 NYC: $149,000,000
UASI FY04: $671,017,498 NYC: $47,000,000
UASI FY05: $854,656,750 NYC: $207,000,000
UASI FY06: $710,622,000 NYC: $125,000,000
UASI FY07: $746,900,000 NYC: $134,000,000
UASI FY08: $781,600,000 NYC: $144,000,000
UASI FY09: $798,631,250 NYC: $145,000,000

ASSESSING RISK AND NEEDS

One of the great challenges in determining how much federal assistance New York and other localities and states need for homeland security is that the data available to make such decisions is limited. Shortly after 9/11, the White House Office of Homeland Security used a FEMA study to come up with the $3.5 billion annual national grant budget for states and localities. No one would argue the FEMA study was anything more than an educated guess, but it was the best available data at the time. However, to continue nine years later to follow the numbers it produced is indefensible.

Today, the answer of appropriate funding levels must come from two avenues despite limitations in assessing both areas: risk and target capabilities assessments at the state and local level, followed by a policy decision at the national level as to what is the long term federal responsibility to assist financially in driving down terrorism risk through enhanced state and local capability.

Some states and localities, such as the San Francisco Bay Area, are moving aggressively in the direction of using data by conducting annual risk assessments and follow-on capability assessments based on those capabilities most directly related to addressing the identified risks. The data is then rolled-up to update plans, including spending plans. This process must become institutionalized in each of the states and major urban areas across the country with involvement from DHS in order to help establish the appropriate national grant budget and individual allocations to states and local governments.

THE PURPOSE OF HOMELAND SECURITY GRANTS

From the start, the homeland security grants have largely been about building long term counter terrorism capacity through plans, equipment purchases, training and exercises and less about operations designed to thwart a specific terrorist plot. Over time, that has changed somewhat with specific percentages of certain grants, such as the UASI, eligible to fund overtime costs for security and investigative operations, as well as for hiring intelligence analysts that support intelligence fusion centers.

It is in the area of operations that New York City in particular sees much of its greatest expense in securing the city. DHS and Congress should re-evaluate whether the limits on such expenses should be raised for New York City and possibly other jurisdictions that can clearly demonstrate they are expending large sums of money for counter terrorism operations as opposed to general crime control.

While the line between crime and terrorism in the area of policing is not always a bright one, there are clear demarcation lines in some cases. In New York, the NYPD has two bureaus dedicated to terrorism prevention: the intelligence and counter terrorism bureaus with each being a good place to start in terms of additional federal funds or the loosening of restrictions on grant funds already awarded for the purpose of funding operations.

In addition to overtime costs are the costs associated with the straight-up hiring of officers. The NYPD has seen its ranks drop from just under 41,000 during 9/11 to roughly 34,500 today. While programs such as the Justice Department’s COPS program are designed specifically for hiring officers, this may be an area that DHS and Congress should explore as well. In fact, in FY 07, DHS created a staffing pilot program that allowed UASI grant funds to be pay for regular time of full time counter terrorism personnel. The program was not continued into FY 08.

CITY VERSUS CITY

New York’s homeland security needs have sometimes been pitted against other cities and states. However, the argument that New York can only be funded at the expense of other jurisdictions has always been a false choice. New York can receive enormous amounts of funding without having to cut off other at risk parts of the country. At $207 million, New York’s 2005 UASI allocation remains the largest the city has ever received, while 42 other jurisdictions also received significant funding that year ranging from $45 million for Chicago to $24 million for Dallas/Fort Worth and $8.7 million for Denver, etc. While New York is the number one target it is by no means the only target and resource allocations must reflect that.

To help avoid pitting New York against the rest of the country, Congress and the Administration should fully fund the UASI program at its authorized levels through FY 2012 as they build out a more robust process for determining what the national level of funding should be beyond that year. For example, in FY 2010, the federal government appropriated $832,520,000 for UASI despite an authorization level of $1,050,000,000. For FY 2011, the authorization amount is $1,150,000,000 with the Administration asking for $1.1 billion, $200 million of which has been designated for security at terrorist trials, leaving roughly the same amount as was appropriated in FY 2010. Rather than earmarking those $200 million for terror trials, those funds should be blended into the larger pot of funds with an eye towards increasing the allocations for high risk jurisdictions such as New York, the San Francisco Bay Area, Chicago, etc.

CONCLUSION

The threat to New York City is simply different than any other jurisdiction in the U.S. The city’s risk profile is unlikely to change over the next decade. Just over nine years since 9/11 it is time for the federal government to re-examine its role in funding state and local homeland security efforts in general and New York City’s in particular. The events of May 1, 2010 in Times Square are a reminder that when it comes to homeland security much of it occurs at the local and state level even if it is a national effort. As part of our federal system, a critical element of federal power in protecting the homeland is providing states and localities with the resources they need to help achieve government’s first priority: protecting the nation from all enemies, foreign and domestic. Nowhere is this more relevant than in New York City.

The Homeland Security Lexicon: How to Define America’s Current Enemy

During the presidential campaign of 2008, then candidate Obama told us words matter. He was right, especially when it comes to providing a clear picture to the American people and the world concerning the nature and objectives of war and homeland security. Now the Obama Administration is updating the National Security Strategy of the United States and in doing so is removing any so-called “offensive” terminology concerning Islam in the hope it will win hearts and minds across the Muslim world. While outreach to the Muslim world is welcome, this particular act is a mistake that displaces facts for feelings.

The Obama Administration early on declared the term “War on Terror” inadequately described the nature and focus of the current conflict. This was a fair critique of the Bush Administration’s vague use of language. The new Administration replaced War on Terror with “War against al-Qaeda,” which is a more definitive description of the enemy and the nature of our engagement against it. However, it’s not enough, and it’s the next level of definition, answering who and what is al-Qaeda and why they are fighting us that the Administration now seeks to obfuscate.

In answering such questions there are three irrefutable facts. First, every member of al-Qaeda, regardless of race, gender or ethnicity is a Muslim. Second, the religious faith of those members serves as the ideological underpinning in their war against the U.S. and its allies. A simple reading of Usama bin Laden’s 1996 and 1998 fatwas shows a movement steeped in religious doctrine and history, even if it is a perversion of such doctrine and history. Indeed, the vast majority of Muslims want no part of al-Qaeda’s radical interpretation of their faith and the U.S. has said from the outset that we are not at war with Islam. Third, the terms radical Islam or Islamist terrorist were hardly part of the American lexicon in the 1990’s or on September 11, 2001. Nonetheless, radical Islam spread and the U.S. was attacked on numerous occasions throughout that period with thousands of Americans killed.

The Obama Administration believes such terms as “radical Islam,” “Islamist terrorism,” and “militant Islam,” etc. should be dropped because they are offensive to many in the Muslim world, which the U.S. clearly needs in its efforts to defeat al-Qaeda, its affiliates and the broader religious ideology upon which they are built. The offending terms have, at times, been replaced with such descriptors as “man caused disasters,” “violent extremism,” “isolated extremists,” and “overseas contingency operations” each of which is meaningless in its attempt to adequately describe the events or people they seek to depict. They are also directly at odds with the Administration’s goal of more precisely describing our struggle against a defined enemy.

The current Administration is not alone in its thinking. At the end of the Bush Administration in 2008, the DHS Office for Civil Rights and Civil Liberties issued a January report entitled Terminology to Define the Terrorists: Recommendations from American Muslims. In March of that year, the National Counter Terrorism Center released Words that Work and Words that Don't: A Guide for Counterterrorism Communication. Each document called for, among other things, substituting words such as “Islamic terrorist” and “global caliphate” with “violent extremists” and “global totalitarian state” in an effort to disassociate al-Qaeda from mainstream Islam and avoid offending the broader Muslim community by using derogatory words of a non-Islamic nature to describe al-Qaeda. However, an August report from U.S. Central Command, entitled Freedom of Speech in Jihad Analysis: Debunking the Myth of Offensive Words, systematically refuted both the NCTC and DHS findings and rightly concluded that “we should avoid readily accepting the notion that criticism or notice of an Islamic tenet, such as jihad, by the U.S. Government is tantamount to the demonization of all Muslims or Islam.”

The reason the U.S. needs the Muslim world to defeat al-Qaeda is exactly the reason that referring to al-Qaeda in the context of its self pronounced religious basis is accurate. Indeed, neither the NCTC nor DHS report refutes this fact, but instead each asserts that by ignoring it we can better win hearts and minds. Would the U.S. need the Muslim world if al-Qaeda was a “Christian Militia?” Of course, few people feared offending Christians recently when the Michigan based Hutaree Christian Militia was disrupted by the FBI for plotting to kill police officers in the militia's religious war against the U.S. Nor does anyone flinch at the term “white supremacist” when describing neo-Nazis or other such groups. Should Christians and Caucasians demand an alteration of the language used to describe these groups given the vast majority of Christians and whites are neither in a militia nor racial supremacists?

Misleading ourselves and allies by blurring the definition of who we fight will not encourage others to support our cause as that cause will become incomprehensible to all involved. Imagine telling our military, intelligence and law enforcement agencies to be on the look out for “isolated violent extremists who may seek to engage in man caused disasters.” How does one even begin to counter such an amorphous threat? Al-Qaeda is as much a movement as it is an organization and Muslims cannot discredit radical Islamists if such radicals and their views cannot be identified for discrediting.

Finally, there is a serious risk to distorting reality in the aim not to offend. It creates a politically correct climate that causes people to ignore the facts for fear of being branded a racist or bigot. Such forces were on direct display in the U.S. Army’s handling of Major Nidal Malik Hasan. Neither the Army nor the FBI took any action against Hasan despite overwhelming evidence he had become radical and potentially violent based on his embracing radical Islam. In the end, Hasan shot and killed thirteen people at Fort Hood last year. Major Hasan had no doubt as to what he was doing or why. Just like the Islamist terrorists on-board United Flight 93 on 9/11, Hasan screamed "Allahu Akbar” meaning “God is greatest” as he began his massacre.

Are We Any Better at Information Sharing?

That is a question that was posed to me by the editors of Emergency Management Magazine. My answer appears in the March edition of the magazine in an article entitled Analysis: Collecting and Sharing Information Is Not Enough. The article is now available on-line. In reaching my conclusion, I spoke to a number of current and former government officials many of whom now serve in business and academia. What do you think? Are we any better at this?

The Khalid Sheikh Mohammed Trial and the Absence of State and Local Coordination

It’s becoming increasingly clear that Khalid Sheikh Mohammed (KSM) and his al-Qaeda cohorts will not be tried in New York City and may not be tried in a civilian court at all. This is welcome news to many of us, but clearly not to the Justice Department’s leadership, which has been reportedly sidelined from the process of devising an alternative trial venue and forum. As we look back on the process that got us to this moment, there is a powerful lesson to be learned beyond the fact the decision on the merits was a bad one to begin with. That lesson being, federal officials should reach out and talk to state and local officials before the feds make monumental decisions that must be implemented largely by those state and local officials.

One of the most striking elements of the process that led to Attorney General Eric Holder announcing his decision to move KSM into the civilian justice system in New York was that his agency never consulted with city officials in New York, most notably the NYPD. This is truly unbelievable for the obvious reason that this was not going to be a typical trial or even a typical high profile trial for a mafia don or a drug kingpin. The trial of KSM in New York would require a security apparatus the likes of which this country had never seen before.

The NYPD’s $200 million annual security bill for the trial is massive by any standard and who would not want to know that fact before making a decision on where to conduct the prosecution? Total costs have been estimated by the NYPD to be $1 billion for the life of the trial. Failure to talk to the NYPD meant the Justice Department had no idea what the security needs would be or how much direct security would cost or what the indirect costs in the form of economic impact on local businesses and the inconvenience to local residents would amount to either. These things were only “discovered” after the decision was made public and they played a big role in reversing the decision as the Justice Department had no basis to challenge the NYPD’s numbers.

The Attorney General’s talking to the U.S. Marshals, a Justice agency responsible for the security of federal courthouses was not sufficient. The Marshal Service’s responsibility, while important, would not include the broader security that must be provided to the area surrounding the courthouse. Moreover, as the NYPD plan outlined, security for the KSM trial would be virtually city wide, encompassing counter measures for Mumbai style assault teams that would attempt to utilize the rivers to lone suicide bombers and more.

Real partnership requires coordination and collaboration. The increased security risk, as directly reflected by the $200 million in additional security the NYPD would need to provide, is something state and local officials have a right to weigh-in on. This is especially true when dealing with the unprecedented move of shipping a foreign war criminal captured overseas onto U.S. soil to stand trial in a civilian court. This does not mean state and local officials have a veto over such decisions, but rather, a voice in the process before the decision is made. While reaching out to city and state officials in New York early in the process risked having the decision to hold the trial in New York leak, would that have been any worse for Justice than where they find themselves now?

Despite trying to be good soldiers and support the decision at first, Mayor Bloomberg and Police Commissioner Kelly eventually came to the realization that holding the trial in New York City would be a nightmare. They as much as anyone helped turn this awful decision around by simply providing the Justice Department, and all of America, with the simple facts surrounding trial security that anyone would want to know and should have known before making a decision as consequential and complicated as trying KSM in lower Manhattan. Let’s hope the ongoing process that may ultimately lead to an alternative trial is a more inclusive one, yielding a more reasonable result.

What The Najibullah Zazi Terror Case Teaches Us

Would be terrorist Najibullah Zazi has cut a deal with federal prosecutors. In his allocution last week in federal court, Zazi described his plan to carry out a “martyrdom operation” against the New York City subway system. While one can still question whether civilian plea bargaining with Zazi, a non U.S. citizen who originally traveled overseas to wage war against the U.S., is the best method for preventing future terrorist attacks; the CIA, FBI, NYPD and others deserve credit for disrupting this plot. The Zazi case teaches us once again that when it comes to protecting critical infrastructure, such as mass transit systems, intelligence is the key.

Mass transit remains among the most likely terrorist targets inside the U.S. generally and the New York City metro region in particular. Attacks in London, Madrid, Moscow, Mumbai and Tokyo, and previous plots against the New York City transit system and the New York/New Jersey Port Authority Trans-Hudson commuter train, provide stark evidence of this fact. In addition to the 2006 train bombings in Mumbai, the terrorist assault of 2008 in that city involved an attack on the transit passenger hall at Chhatrapati Shivaji Terminus killing fifty people.

By their very nature, mass transit systems are extremely vulnerable to attack, whether by suicide bombers, as was done in the first London bombing, or by timed improvised explosive devices in back-packs left on trains, as was done in Madrid, or by assault team, as was done in Mumbai in 2008. The reasons for this are obvious but very hard to overcome: in order to move the masses, mass transit systems must be open and free flowing to function. Due to this fact, the traditional “target hardening” of metal detectors, personnel/baggage screeners, gates, fences, cameras, sensors, bollards and other perimeter security measures are less effective or even applicable. Unlike with aviation, technology does not yet exist where we can timely baseline screen (forget secondary screening) all people and things that enter the transit system without causing the system to screech to a halt.

Even if we could baseline screen all passengers, there is little reason to believe it would be effective enough to warrant the impact on transit operations. The willingness of passengers to be inconvenienced due to screening in order to travel from New York to Los Angeles is one thing. Their willingness to go through the same screening to go from 86th Street to 59th Street on Manhattan’s Upper East Side is quite another. This is not to suggest that certain “traditional” security measures should not be used. However, such measures, especially cameras and sensors, should be used as tools to collect intelligence, e.g., suspicious surveillance or probing activity, and not simply as a post event forensic tool to help determine who carried out the attack. As for passenger screening, it should be primarily intelligence driven as opposed to simply random.

Despite certain intelligence failures in the Zazi case related to understanding in real time his pre-operational logistics in the form of his taste for purchasing large quantities of nail polish remover, which contains acetone, a key ingredient for the explosive Triacetone Triperoxide, there was enough intelligence collected to thwart this plot. Going forward, Zazi teaches us there is a connection between nail polish remover and the security of America’s mass transit systems. Collecting and then connecting the dots necessary to link nail polish remover to transit bombings is no easy task and requires an intelligence system capable of linking foreign travel to suspicious purchasing habits and everything else in between. However, there is no alternative if we hope to protect the virtually endless number of potential targets and especially those highly critical and vulnerable targets such as mass transit.

Had the day come for Najibullah Zazi to carry out his plot, it is very likely he would have succeeded. Perhaps he, and his co-conspirators, would have appeared as just another set of passengers with back-packs on New York’s massive subway system. That is, until they and/or those back-packs unleashed a reign of explosive terror the likes of which we have not seen in the U.S. in eight years. Fortunately, we’ll never know for sure, but it’s a stark reminder that the key to protecting mass transit and other critical infrastructure at home is to collect actionable intelligence inside the homeland and around the world.

The Austin Plane Crash: Crime or Terrorism?

Last week’s shocking site of a commercial office building in Austin, Texas engulfed in flames and thick black smoke, after having a small plane intentionally slam into it, provided a chilling reminder of the 9/11 attacks. Given the similarities between 9/11 and what happened in Austin, this most recent incident has caused many to ask if the crash was an act of terrorism or a crime. The White House has taken a wait-and-see approach depending on the outcome of the investigation, while the chief of police in Austin has called it a crime and not an act of terrorism.

The debate over crime versus terrorism misses the larger point and distinguishing factor between September 11, 2001 and Austin, Texas, February 18, 2010. The attack in Austin that killed one, in addition to the attacker, appears to be an act of terrorism. However, unlike the 9/11 attacks, the incident in Austin was likely not an act of war or war crime signaling a strategic threat to U.S. security at home and abroad. While all terrorism is a crime, every crime is not act of terrorism, nor is every act of terrorism an act of war or war crime, just as every act of war is not an act of terrorism.

Federal law defines an act of war, in part, as “armed conflict between military forces of any origin” and the term "domestic terrorism" as activities that occur primarily inside the U.S. that involve “acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, appear to be intended to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction.” Federal law goes on to define war crime as any number of acts committed during armed conflict including, murder, rape, mutilation, as well as, through incorporation of elements of the Hague Convention, “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended.”

The 9/11 attack was clearly a war crime, which followed a declaration of war from al-Qaeda and resulted in the U.S. engaging al-Qaeda and its affiliates in a global armed conflict. The flying of commercial aircraft into buildings on 9/11 caused NATO to invoke Article 5 of the North Atlantic Treaty, which states that an attack against one is an attack against all. The former Soviet Union never achieved such an outcome in 50 years of the Cold War. The nature of al-Qaeda’s attacks, by non-uniformed combatants against civilian and military targets, doesn’t make our fight any less of a war, but instead demonstrates our enemy’s consistent violation of the laws of war.

Joseph Stack, the man who is alleged to have flown his plane into the Austin building, and who burned his own home prior to doing so, appears motivated by several factors, including a deep hatred of the IRS. The Austin Statesman newspaper has posted what it believes to be Stack’s suicide note from the internet in which he rails against the IRS, Catholic Church, major corporations, capitalism, bailouts, unions, the American people, and manages to praise communism in his closing. As for his intent, the following passage best summarizes it:

"I know there have been countless before me and there are sure to be as many after. But I also know that by not adding my body to the count, I insure nothing will change. I would only hope that by striking a nerve that stimulates the inevitable double standard, knee-jerk government reaction that results in more stupid draconian restrictions people wake up and begin to see the pompous political thugs and their mindless minions for what they are. Sadly, though I spent my entire life trying to believe it wasn’t so, but violence not only is the answer, it is the only answer."

The above passage would seem to fit with a domestic criminal act “intended to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction” as set forth in the definition of domestic terrorism. The fact that Stack’s attack is unlikely to actually affect the conduct of the government does not diminish his intent to do so. Of course, it’s possible the internet posting is a fraud and Stack is simply a mentally deranged individual who flew his plane into a building.

At most, our reaction to the Austin event may involve greater scrutiny of general aviation and small aircraft in particular, which has long been the soft underbelly of aviation security. It will almost surely not involve the use of military force against any foreign entity or an invocation of the Insurrection Act here at home. Stack appears to be a true lone wolf terrorist. His conduct, while depraved, does not directly impact the national security of the United States.

Terrorism can come in many forms. What primarily separates general crime from terrorism is the intent of the actor. What often separates or in certain cases escalates an act of terrorism to a war crime is the nature of the attacker, and the target and impact of the attack, along with the response thereto. Unfortunately, there is no universally recognized set of definitions for most of these terms. Nonetheless, the attack in Austin was clearly a crime and probably an act of domestic terror as well. Unlike 9/11, that is as far as it likely goes.

The Disconnect between DHS and the Homeland Security Mission

Recently, Dr. James Carafano of the Heritage Foundation wrote a piece entitled Lay off Napolitano and the Homeland Security Department, which includes a run down of which federal agencies dropped the ball in the Christmas Day flight 253 “panty bomber” case. In his analysis, Carafano concludes that “none of the responsibility for keeping the attempted killer [Umar Farouk Abdulmutallab] off the plane rests with the Department of Homeland Security.” This is a remarkable statement primarily because it’s true, which raises a serious question: How is it we have a Department of Homeland Security that is not actually responsible for much of our homeland security?

When DHS was created it was marketed as a consolidation of key counter-terrorism agencies and functions that had previously been spread incoherently throughout the government. However, in the end, while several agencies and functions did come into DHS, as outlined in Carafano’s article, all too many did not. This includes issuing visas, (State Department), managing the No Fly List, (FBI), and serving as the hub for homeland security intelligence, (National Counter Terrorism Center). All of this has caused confusion from the start, which Congress and both the Bush and Obama Administration’s have compounded by making the DHS Secretary the face of homeland security for appearances, but in function relegating DHS to junior partner in the conglomerate of federal counter-terrorism agencies.

Perhaps no case better exemplifies the disconnect between DHS and the larger homeland security mission than the decision to keep the FBI out of the new department. Even before the flight 253 attack, Fox News ran a story outlining the internal fighting between the FBI and DHS on matters involving information sharing with state and local law enforcement generally and the recent Naji Bullazazi case in particular.

Fear and Chaos

In 2002, when the creation of DHS was being debated, the issue of whether the FBI should be inside the new department garnered much attention. Some would argue the FBI fought as hard against becoming a part of DHS as it has in fighting al-Qaeda. All kidding aside, why did the FBI resist going into DHS back in 2002? Two reasons perhaps best summarize the answer: chaos and fear of the unknown.

To understand the FBI’s fears of going into DHS one need only look to the U.S. Customs Service, or rather the former U.S. Customs Service. The Customs Service had been intact since 1789, but upon its entry into DHS the U.S. Customs Service as we knew it is gone, split into two parts with its investigators now working with former INS investigators at the new Immigration and Customs Enforcement and its inspectors working with the Border Patrol at the new Customs and Border Protection.

In addition to the FBI’s fear of being disbanded, there was the inevitable chaos surrounding the establishment of DHS. In 2002, the Bureau was going through very painful reorganizations of its own and the weight of the two events, internal reorganization and external placement in a new department, may have proven too much for the FBI while it was being charged with preventing the next attack inside the homeland.

A Conflict of National Security Interest

Despite the FBI’s fears, there is an inherent conflict in having the primary responsibility to prevent and protect against terrorism separate from the primary responsibility to investigate and counter terrorism. Indeed, the primary mission of the FBI is to “protect and defend the United States against terrorist and foreign intelligence threats.” Under the Homeland Security Act of 2002, the primary mission of DHS is “to prevent terrorist attacks within the United States.” However, the 2002 Act goes on to specify that, “primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over acts of terrorism.” That clause, coupled with the FBI being kept out of DHS, has been a major factor in the division between DHS and the means to carry out its mission.

Protection versus Investigations

The U.S. Secret Service, a DHS component, actually presents a case study on the issue of separating investigations from security, as well as what the FBI’s placement in DHS could have looked like. Under the Homeland Security Act, the Secret Service was placed into DHS with the caveat that it had to be “maintained as a distinct entity within the Department” meaning it could not be disbanded the way Customs was.

As a law enforcement agency, the Secret Service is unique in many ways, particularly in that the success of one its core missions, protecting the President, Vice President, etc. (protectees) is achieved if it prevents attacks against those protectees. The purpose of investigating all threats against the President is to prevent the threats from materializing into actual attacks. No investigation is judged a “success” if a President is assassinated and the assassin is subsequently arrested, prosecuted and convicted. Coincidentally, the FBI leads the investigation into such actual attacks.

In its 1964 report on the assassination of President Kennedy, the Warren Commission, in evaluating the different federal agencies and their respective roles and responsibilities in protecting the President, noted that removing the responsibility for investigating threats against the President from the Secret Service and placing that function in a different federal agency, notably the FBI, could undermine the Secret Service’s fundamental role of protection:

It is suggested that an organization shorn of its power to investigate all the possibilities of danger to the President and becoming merely the recipient of information gathered by others would become limited solely to acts of physical alertness and personal courage incident to its responsibilities. So circumscribed, it could not maintain the esprit de corps or the necessary alertness for this unique and challenging responsibility.

Concerning the flight 253 attack, Secretary Napolitano recently told Congress that DHS is largely a “consumer” of intelligence when it comes to homeland security. This is correct and precisely the situation the Warren Commission warned against concerning the Secret Service. The decision keep the FBI out of DHS has effectively separated prevention from protection where the protectee is the United States itself.

No Silver Bullet

Placing the FBI in DHS would not miraculously remove all of the conflicts over jurisdiction, roles and responsibilities between the Bureau and the current DHS operational components. The FBI has had numerous such battles over the years with sister Justice Department agencies including the DEA and ATF. Battles over jurisdiction and turf are an art form in Washington, particularly within the intelligence and law enforcement communities, regardless of where they sit on an organization chart.

Nonetheless, if we truly wanted a single agency whose primary mission was the protection of the homeland from terrorism, placing the FBI in DHS would have made that aspiration closer to a reality. It also would have more closely aligned federal law enforcement organization with state and local law enforcement organization, which more often separates the prosecutors from the police and investigators.

Conclusion

Organizational charts do matter. Clear lines of authority and responsibility are foundational elements for the success of any entity. Since its inception, DHS has had to deal with federal agencies and authorities necessary to carry out the homeland security mission being kept outside the department. The flight 253 case is just another reminder of this fact.

While DHS does play an important role in the current homeland security structure, it is a far cry from how it was marketed during its founding, as well as how it’s perceived by the public today. This adversely impacts both public confidence in the department and actual operations.

Whether federal agencies or functions are ever consolidated in the department charged with leading the unified national effort to secure the homeland is anyone’s guess. In the meantime, the disconnect between the homeland security mission and the department established to lead it will continue.