Homeland Security Watch

News and analysis of critical issues in homeland security

December 13, 2010

X Marks the Spot – Jurisdictionally Speaking…

Filed under: Congress and HLS — by Jessica Herrera-Flanigan on December 13, 2010

As the House of Representatives reorganizes itself for the 112th Congress, it is time to revisit, yet again, what to do about the jurisdiction of the House Homeland Security Committee.  Specifically, how should “Rule X,” which determines Committee organization and oversight, be formulated to ensure that homeland security is best served. Since its creation as a “Select” (aka “temporary”) Committee in 2003 during the 108th Congress, there has been a constant drumbeat of experts, pundits, and Department of Homeland Security officials calling for oversight and legislative jurisdiction to be unified under one Committee. Reports abound of the 100+ Committees and Subcommittees that DHS has to appear before and of legislation getting stalled because of jurisdictional infighting inside of Congress. Those outside of Washington are probably scratching their heads and wondering why does this matter? Isn’t it really an insider’s game of turf battle and power grabs?

Well, yes and no. There is obviously a tradition in DC of protecting one’s turf and preserving power. And that has played a significant role in not only how Congress treats homeland security, but in how the Department has developed. The jurisdictional fights, while inherently D.C., have a tremendous impact on how homeland security has developed and how it will continue to grow. Split jurisdiction means that the Department lacks a clear guiding voice on how it should move forward on security issues. Instead, it has many keepers in some areas — all of whom have different and potentially conflicting interest. The jurisdictional split also means that the Department does not have a clear overseer to hold it accountable and ensure that efficiencies and effectiveness are front and center. As a result, DHS reports to many, causing it to be sluggish and not able to fully maximize its resources to the homeland security mission.

When the Homeland Security Act was passed and DHS was created, 170,000 employees and 22 departments and agencies were merged. Among the entities that moved to the new Department:

  • Coast Guard –  Department of Transportation
  • TSA – Department of Transportation
  • U.S. Customs Services – Department of Treasury
  • Secret Service – Department of Treasury
  • Immigration and Naturalization Service – Department of Justice
  • Border Patrol-  Department of Justice
  • Animal and Plant Health Inspection Service – Department of Agriculture
  • Critical Information Assurance Office – Department of Commerce
  • National Infrastructure Protection Center – FBI
  • Various other entities from Agriculture, Commerce, Defense, Energy, GSA,  Health and Human Services, Justice, & Treasury

The creation of DHS was the biggest reorganization of the government since the Department of Defense was created in the National Security Act of 1947.  In creating the agency, Congress deemed it necessary to rethink how we approached federal governance in a post-9/11 world.  The new Department was to help the nation heal and be prepared for the next attack.  Its mission was (and is) simple, as described on the DHS website:

to lead the unified national effort to secure the country and preserve our freedoms. While the Department was created to secure our country against those who seek to disrupt the American way of life, our charter also includes preparation for and response to all hazards and disasters. The citizens of the United States must have the utmost confidence that the Department can execute both of these missions.

Unfortunately for the agency, confidence is constantly being questioned as the agency has tried to manage itself over the past 7 years.  Whether uniting jurisdiction in one Committee will solve the agency’s problems is unknown and questionable, but the voices of those who say it is the right thing to do are many. For example:

  • The 9/11 Commission: Of all our recommendations, strengthening congressional oversight may be among the most difficult and important.  So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need.  The United States needs a strong, stable, and capable congressional committee structure to give America’s national intelligence agencies oversight, support, and leadership.
  • CSIS/BENS Task Force on Congressional Oversight of the Department of Homeland Security: The result is a Department of Homeland Security that is hamstrung by a system of Congressional oversight that drains departmental energy and invites managerial circumvention. Until Congress confronts the hard task of correcting this mismatch, DHS is at risk of failing to achieve its full potential.
  • The Center for Public Integrity: The Department of Homeland Security is still coping with an extraordinary number of demands from Capitol Hill, which are tripping up a fledgling organization. And the crazy quilt of oversight is making it difficult for Congress to provide cogent guidance on budgeting, organization, or priorities for a department still struggling on all those fronts.
  • Homeland Security Policy Institute:  Congress must not let its homeland security efforts remain unfocused and dispersed. Consolidation of authority under a single permanent standing committee is the best answer to a problem that has already persisted two years too long.
  • Heritage Foundation: It has been seven years since the Department of Homeland Security was created, and yet Congress has still not reformed oversight of homeland security. The lack of congressional action has become something of a joke, even catching the attention of institutions like National Public Radio that would normally dismiss oversight of a department as an “inside the Beltway” issue.

Left. Right. Center.  It seems that the jurisdictional issue is one that unites across the political spectrum.  I have not seen outside of Congress a good analysis of why jurisdictional should not be consolidated. The strongest argument made to not consolidate in 2003-2004 was that expertise over the various portions of the Department resided with existing Committees. To create a new Committee without that expertise and historical knowledge would lead to more chaos according to many of the Committee Chairmen in that timeframe.  Indeed, in creating the temporary “Select” Committee on Homeland Security in 2003, then Speaker Hastert tried to address this concern by naming almost all Chairmen to the Committee.  That proved disastrous as many used the position to ensure that the Committee did not encroach upon their existing jurisdictions.  The majority of Chairmen did not show up for the Committee’ mark-up of its first authorization bill, requiring then-Chairmen Chris Cox (R-CA) to defend against several dozen amendments offered by Democratic Members without a Republican majority. The result? The mark-up was canceled.

When the Committee became permanent at the beginning of the 109th, the jurisdictional fighting did not cease.  A number of Committees raised concerns with the proposed Committee’s jurisdiction and pushed back.  In a legislative history prepared by the Speaker’s Office in early 2005, a number of areas were identified as needing to remain with the existing Committees.  They can be viewed here.

At the beginning of the 110th, with the Democrats taking over the House, there was discussion about how to revise jurisdiction.  Some jurisdictional battles were resolved between Committees.  For example, the Homeland Security and Transportation & Infrastructure Committees entered into a Memorandum of Understanding on how they would share jurisdiction over emergency preparedness and related issues.  At the beginning of the 111th Congress, there was discussion once again about jurisdiction. No significant changes, however, were made to the House Homeland Security Committee’s jurisdiction.

So, looking forward to January, what changes should be made in Congress to the Committees to better oversee and legislate on homeland security issues? Here are a few suggestions:

  • Emergency Preparedness/FEMA:  Jurisdiction over FEMA and emergency preparedness issues should be transferred to the House Homeland Security Committee. While the Transportation & Infrastructure Committee will object, there are few reasons to keep jurisdiction at T&I.  Under the current Rule, T&I has jurisdiction over generic emergency preparedness while Homeland has jurisdiction over emergency preparedness activities relating to terrorism.  The same entity (FEMA) and personnel are responsible for both in today’s all-hazards approach to emergency preparedness.
  • Border Security and Immigration:  Homeland Security has jurisdiction over border security generally while Judiciary has jurisdiction over immigration, visa, and non-border enforcement (e.g. ICE).  There is a larger question about whether immigration administration should be married with border security and whether USCIS belongs in DHS at all (but that is a subject of another blog).  What is clear, however, is that non-border enforcement elements such as ICE should be within the jurisdiction of Homeland, esp. given its related work on CBP, over which it has jurisdiction.
  • Secret Service: Currently, Judiciary has primary jurisdiction over most of Secret Service’s elements.  Since the agency was moved to DHS, oversight and legislative authority over the agency should also be moved over.
  • Federal Law Enforcement Training Center (FLETC):  Another agency that moved to the Department, of which jurisdiction should be given to Homeland.
  • Coast Guard:  Currently T&I has primary jurisdiction over the Coast Guard.  The agency itself is complicated and has a number of non-security functions and responsibilities. That said,  authority over it should probably be moved over to Homeland Security.’
  • Cybersecurity: Cybersecurity, other than that involving government-wide cybersecurity efforts relating to government computers, has never really had a home jurisdictionally. Originally, Homeland was going to be given jurisdiction over the issue in 2005, but other Committees protested so the rules were left silent on the issue, except for the existing government systems jurisdiction granted to Government Reform.  As an issue that is too important to be left unaddressed, civilian cybersecurity efforts should be within the jurisdiction of Homeland Security. Military and intelligence efforts should remain within Armed Services and Intelligence.

There are other areas where overlapping jurisdiction can be further clarified. Among them are the Federal Protective Service, emergency communications, and some infrastructure protection programs. They should certainly be explored though the items listed above should clearly be addressed.  If we are going to demand that DHS continue to improve and evolve in its efforts to protect America, then Congress must do its part to assure the agency is well-organized and armed with the right tools.

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Comment by William R. Cumming

December 14, 2010 @ 7:51 am

Excellent post Jessica and represents a lot of thought and hard work. It also represents the disaster that is House oversight of HS/EM at the present. In fact I would argue that the current system prevents effective oversight. I do not have sympathy with DHS constant claim that they get too much oversight. Most of what they get has almost no substance and is largely designed for posturing by the Committee chairs and members. And oddly why is there so little oversigh by the Science Committees on the many issues that involve science and technology in HS/EM?

The Republicans were shortsighted in elimiating the Office of Technology Assessment in 1994 and that Office needs to be reestablished to repair the damage caused by its elimination.

Comment by Jessica Herrera-Flanagan: Take Heed Senators!

December 14, 2010 @ 9:53 am

This post is one of the more important. It message critical to our well being as a nation.

Ms. Herrera-Flanagan is most diligent in accurately assessing the importance of such and her remarks must be forwarded immediately to all our charming or as I refer to you bedazzled folks…com’on…yes, foolhearty in demeanor! Your obvious lack of real insight and your boyish behavior as you think you are still playing king of the mountain! Wake up!

We have “entrusted” you by our precious vote afforded to us by our beloved Republic and the US Constitution also under attack and pls understand that your power can be swept away as quickly as a tsunami. Yes, we are the most charitable people, tolerant of much, yet quite discontent.

….as both the articulate Ms. Herrera-Flanagan and William Cumming are most accurate in their perspective, it is damn right shameful that this incompetence and/or politicizing in “charade” continues on both sides of the aisle.

Get it Right! Time is of the essence.

…Time does not permit this outright display of “politicizing” and demands from each of you – who can reply herein to Ms. Herrera-Flanagan –

….demands the same level of competence and under-standing and vital importance to DHS, to others and to us here on Main Street USA.

Get it Right!

I will be forwarding Ms. Jessica Herrera-Flanagan’s post to as many of our charming and bedazzled Senators who We expect to make certain DHS and other have the necessary tools and support they require. Anything less becomes your failure to properly address the more important issues like this presented herein.

Professionally, I must deal with Haiti in making every attempt to offer housing and prerequisite wastewater/water purification requirements there and despite the tireless efforts since 12th January, the corruption riddled throughout forcing those much less fortunate remain in tattered tents also unacceptable, actually appalling, just as the Republicans and/or Democrats here cannot seem to grasp the importance of such issues which affect our efficiency, our ability to thwart those that very much seek our demise.

Get it Right!

To the Senators and to the new 50 or so Congressional newcomers, I see the Chinese in Africa and in fact every place globally my global business in representing collaborative efforts by “experts” to address housing and more importantly, “water issues” where nearly 1 billion fellow human beings have little or no access to a clean glass of water in this 21st century. This “charade” in Washington must cease.

The Chinese, who despite their human rights issues, must be applauded for their long standing history and wisdom, their insight and reach beyond the horizon for they hope to even colonize the moon within coming decades as We look up and see the Chinese flag emblazoned before us, never mind weapons technology catching up to us shortly and most likely superceding us.

….a China with its innovativeness which now has pledged to use Hank Paulson’s Fed Res Notes stacked in their coffers in pledging $1.8 billion in innoative new technology in biomed and other. Raw materials, resources in precious metals, all that I have seen them rape the good people of Africa from their land and stockpile for decades to come. I have a domestic manganese mining ops which needs investment funding w/managanese imported and no ne is to be found astute enough to say hey, why are we importing such when we have it here…

Wake up America…it is later than you think and all is Not well. We as a nation are in great peril! Do what is Right! Stop pointing fingers as each of you is so more unimportant than you perceive, yet together with clasped hands, you are the fortitude and the beacon of hope this so, so corrupt and dysfunctional world needs so desperately.

Start by doing what is Right! Listen to Ms. Jessica Herrera-Flanagan and to William Cumming and muster yourselves as the Lexington and Concord Minutemen for we are besieged from within and from others who see your flaws and weaknesses which are so painful to so many of us here on Main Street USA and to those in distant lands who do not hate us as much as you hear, but are so utterly disappointed in your self-agenda and failings to protect America, its values, our Flag pin, our Flag and our Constitution and lending assistance to those desperately oppressed and considered as nothing more than someone to be stoned to death or whose rich Persian blood willingly spilled on the streets of Tehran by those whose dastardly deeds of the “Brutes of Tehran” as I refer to these hoodlums will adversely affect many more unless you retore faith in our nation from within –

Get it Right!

God Bless our beloved Republic!

God Bless all those who profess kindness and compassion to those less fortunate….

Where is our intellect and where is the leadership which we seek to overcome those who seek not only our demise, but who wish to veil all in hopelessness and despair….the Obama’s chose to replace the bust of Winston Churchill with that of Martin Luther King…It is Winston Churchill we need as we know the story of slavery quite well and as we are all enslaved by the likes of Goldman Sachs and others, War is evident and it is Winston Churchill who can restore our confidence, our trust in government for if we have little trust in your actions, how can we expect others to have trust in our country! I will not even address Wikileaks….you must address those you have so deeply insulted.

Christopher Tingus
PO Box 1612
Harwich, MA 02645 USA

Comment by Cosmo deMedici

December 14, 2010 @ 2:56 pm

If DHS wanted to play “hardball” they could use the hyper-pluralized congressional jurisdiction to play committees off against one another; all the while doing what it wants (policy wise) by going to the friendliest Chairman & Ranking Member (if at all). Then again, that may be happening already and none of the committees would be aware of it due to the narrow vision they all have.

The only exception would be the Chairmen and Ranking Minority Members of the Appropriations Subcommittees on Homeland Security. As the Appropriations committees were the only entities in Congress to consolidate jurisdiction over Homeland Security. DHS has no way around them. However, the Appropriations staff is overwhelmed by the resources (people, money, time, etc.) of the Department. Thus, DHS only has to pacify/change what the Appropriations staff focuses on and the rest is fair game.

Of course, if this was happening Congress would be effectively neutered – Oh wait, Congress has been neutered as there has never been an enacted DHS REAUTHORIZATION bill – just poor quality (90% of the time) policy riders on the Appropriations bills. Maybe, DHS asking for jurisdiction reform is a smoke screen for what is really going on (either intentionally or unintentionally, after all it is DHS).

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