Homeland Security Watch

News and analysis of critical issues in homeland security

March 26, 2013

Homeland Security Legitimacy

Filed under: General Homeland Security — by Christopher Bellavita on March 26, 2013

This post was written by Charles Eaneff.  Among his other accomplishments, Chuck is the former Acting Executive Director DHS Office of State and Local Law Enforcement and a Naval Postgraduate School alumnus.

 

 

From Defining Homeland Security: Analysis and Congressional Considerations, CRS, Washington, DC, 2013,

Homeland security as a concept suggested a different approach to security, and differed from homeland defense… “Homeland defense is primarily a Department of Defense (DOD) activity and is defined as “… the protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President.” Homeland security, regardless of the definition or strategic document, is a combination of law enforcement, disaster, immigration, and terrorism issues. It is primarily the responsibility of civilian agencies at all levels. It is a coordination of efforts at all levels of government. The differences between homeland security and homeland defense, however, are not completely distinct. An international terrorist organization attack on and within the United States would result in a combined homeland security and homeland defense response, such as on 9/11 when civilian agencies were responding to the attacks while the U.S. military established a combat air patrol over New York and Washington, DC. This distinction between homeland security and homeland defense, and the evolution of homeland security as a concept, was reflected in the strategic documents developed and issued following 9/11.

After 9/11 the Bush Administration, by creating DHS and reprioritizing government functions, began the transformation of Treasury Agents and Department of Transportation regulators into Security agents. At the same time, the Center for Homeland Defense and Security (CHDS) was created within the Naval Postgraduate School reflecting the CRS observation that “The differences between homeland security and homeland defense, however, are not completely distinct.” The CHDS program, in admitting civilian and DoD employees from all levels of government, clearly represents the CRS contention that homeland security is a coordination of efforts at all levels of government. In 2009, the Obama Administration continued the merger of national security and homeland security, integrating the White House Homeland Security Council into the National Security Council.

A recent survey of over 1,000 homeland security professionals by the CHDS Futures Advisory Committee noted that the merging of national security and homeland security was one of the critical (existing or anticipated) trends within the Homeland Security Enterprise:

As domestic and foreign threats run together, it is not clear whether it makes sense to view these as separate issues. Also, increasing numbers of National Security issues (such as global trade, migration/travel, climate change, pandemic threats, access to natural resources, etc.) relate directly to Homeland Security issues. Geography will become less viable as a concept (in terms of threats, attacks, etc.). American tourists and diplomats may be threatened overseas.

As homeland security has matured since 9/11, the insights in the CHDS survey that the wall between national security and homeland security is coming down is undoubtedly accurate. A foundational challenge of the next decades is that those bricks between national and homeland security are being tossed aside and building a functional wall between justice and security. Whether or not we would collectively agree with the insights of former Shin Bet leadership expressed in the “Gatekeepers” movie, two major themes reinforced by their edited observations were that security and justice are inexorably intertwined, and that leadership all too often reflects “all tactics, no strategy” in pursuit of short term security. If the diverse community of homeland security practitioners does not heed lessons about the importance of legitimacy learned by the police segment of the homeland security enterprise, we risk achieving neither homeland, nor national, security.

Consistent with Lincoln’s Gettysburg Address and Sir Robert Peele’s “The police are the public and the public are the police,” our historic security strategy has been justice supplemented by police (“the police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen in the interests of community welfare and existence.”) combined with strong external defense capability. Domestically, justice has not been just a desired outcome, but a strategy to achieve an outcome of security. The separation of justice and security is cementing itself as more than different missions of two Federal Departments.

Justice driven discretion in the application of law increasingly exists side by side, and often at odds, with national security driven rules in the application of control.

The recent TSA decision to permit some knives on passenger aircraft makes this point quite clear. CNN reported that former Bush Administration head of TSA Kip Hawley concurs with this Obama Administration decision,

“In retrospect, I should have done the same thing,” Hawley said of the rule, which allows passengers to board aircraft with certain small knives, as well as sports equipment such as ice hockey and lacrosse sticks.

“They ought to let everything on that is sharp and pointy. Battle axes, machetes … bring anything you want that is pointy and sharp because while you may be able to commit an act of violence, you will not be able to take over the plane. It is as simple as that,” he said.

“So my position would be bravo on the 2.6 inch knife. But why not take it all the way and then really clean up the checkpoint where officers are focusing on bombs and toxins, which are things that can destroy an airplane. And it would smooth the process, cost less money, and be better security.”

Asked if he was using hyperbole in suggesting that battle axes be allowed on planes, Hawley said he was not.

How is it possible that across two Administrations, in the largest law enforcement agency in the United States (DHS has more law enforcement officers than any other department, Federal, State or local), with a law enforcement professional of impeccable credentials at the helm of TSA, that foundational principles of public safety and the well documented relationship between enforcement legitimacy and public compliance are ignored?

Might it be possible because the CHDS Futures Committee was correct, and we are well on the road to “Merging of Homeland Security with National Security”, but we are doing it at the expense of public security and legitimacy?

The most significant partners in establishing and maintaining security in the operation of passenger airlines has to be the flight crews and the flying public. A flight attendant’s primary duty is the safety of passengers. Flight Attendant Union outrage over this knife decision appears to reflect an understanding that if they ever believed that the government was a partner in their efforts to protect themselves and their passengers, that this is no longer the case. National Security is threatened if an aircraft is destroyed; the loss of cabin crew or passengers does not threaten national security.

TSA focus on national security in this “knife fight” comes at some loss of DHS/TSA legitimacy as a public safety provider.

However, as “homeland security” regulatory and enforcement continues to merge with and resemble “national security” rather than the public’s security, there are bright spots in the integration of justice, legitimacy, and security.

Department of Defense literature on counterinsurgency, including the US Army and Marine Corps Counterinsurgency Field Manual, reflects a deep understanding of legitimacy and the role it plays in security. When Craig Fugate of FEMA extols his approach to “whole community,” what I hear is “FEMA, at all times, should maintain a relationship with the public that gives reality to the historic tradition that emergency managers are the public and the public are emergency managers; FEMA employees being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”

In this version of Alice in Wonderland Homeland Security, the Marines and Emergency Managers are driving toward Peelian principles of trust and accountability, paying close attention to their legitimacy, and DHS enforcement is driving toward national security at the expense of public safety.

Evolving security, both national and homeland, ensured by State control has a complex relationship with our historic strategy of security ensured by the public perception of justice supported by law enforcement’s use of discretion and the law.   It is a relationship worthy of the same examination as the relationship between security and defense.

Going forward, academic examination of the relationship between defense and security without including justice as an “equal” is increasingly an examination of a two legged stool.

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16 Comments »

Comment by William R. Cumming

March 26, 2013 @ 8:06 am

Thanks Charles Eanaff for this most excellent post. I will use it to demark what some will view is a change in my direction on this blog. Perhaps as some wit stated, perhaps Oliver Wendell Holmes [a decorated veteran] and I paraphrase Consistancy is the hobgoblin of small minds. And for certain some view me as strong minded and some weak minded. Perhaps eye of the beholder and perhaps both views easily documented.

So what is my new direction? Destruction of shibboleths that mark the HS enterprise and its current formulation! First, HS did not arise from immaculate conception but was utilized by the Defense Science Board originally in a brilliant three part report. Then adopted by various commissions and Congressional staff.

I note in the post the following sentence:

“It is primarily the responsibility of civilian agencies at all levels.”

There is NO consensus on this statement although it is my position. With the adoption of the military MOS by the USAF of EM up to 200 enlisted ranks from that organization have started to show up at what are largely civilian conferences. Would that the civil departments and agencies could send so many. Yet perhaps as the RPV world evolves this is nothing but USAF post employment counseling. DHS now is approaching over 100K of its FTE’s that are veterans.

Comment to b om

Comment by William R. Cumming

March 26, 2013 @ 8:20 am

Comment continued:

From the post:

“This distinction between homeland security and homeland defense, and the evolution of homeland security as a concept, was reflected in the strategic documents developed and issued following 9/11.”

I respectfully [to the authors of the documents and implementors] strong disagree with the statement above.

Homeland Security as a concept has not really evolved, did mpt begin on 9/11 and virtually none of the strategic documents issued post 9/11 show any evolution of the HS concept.

To be continued!

Comment by William R. Cumming

March 26, 2013 @ 9:16 am

Continued and correction:

The penulitmate sentence in my last comment should have read “did not” as opposed to “did mpt”!

Also this sentence in the post is totally incorrect. The NSC and HSC staffs were merged into the NSS but the HSC and NSC are statutory entities.

Comment by William R. Cumming

March 26, 2013 @ 9:31 am

Continued:

I strongly disagree with this statement in the POST:

“Domestically, justice has not been just a desired outcome, but a strategy to achieve an outcome of security”!

So “security” trumps Justice? Due process and the Bill or Rights? Check Amendment IX of the Constitution.

Comment by William R. Cumming

March 26, 2013 @ 9:36 am

Another worrisome sentence:

“Domestically, justice has not been just a desired outcome, but a strategy to achieve an outcome of security. The separation of justice and security is cementing itself as more than different missions of two Federal Departments.”

Is this Oder Uber Alles in disguise?

Comment by Chuck Eaneff

March 26, 2013 @ 2:31 pm

Those sentences should be worrisome, however nothing in the post should be read to infer that “security trumps justice.” Quite the opposite. Justice is required to achieve security. Justice is MORE than an outcome. Justice is required to achieve an outcome of security. No justice = No Security.

Comment by William R. Cumming

March 26, 2013 @ 3:46 pm

I certainly agree with the equation!

Comment by Philip J. Palin

March 27, 2013 @ 5:14 am

Mr. Eaneff: I appreciate the justice-and-security balance. I also appreciate the attention you have given to the balance of discretion v. rules. I perceive that over the last generation there has been a tendency to narrow the role of discretion — and increase the place of rules — in the administration of justice. Accurate or inaccurate impression? If accurate, what are the implications for the balance you are arguing must exist?

Comment by Christopher Tingus

March 27, 2013 @ 8:59 am

With regard to George W. Bush signing into law the Homeland Security Act of 2002 with the ATF moved the ATF to the DOJ, I remind each of you of our Founding Fathers and during their description of the American Republic so contrary to the more socialist perspectives being conveyed by this tax and spend WH administration who not only left our brave Patriots behind at the “Benghazi Massacre” but despite the brave Patriots yelling, “let’s rock ‘n roll” when learning that our heart, the People’s White House was the target of those who sought our demise, has closed the doors to the White House in continuing its perverse and divisive ways when – our children deserve better – and to learn not only about slavery in the past as Michelle and Barry Obama are so fixated upon in their biased views, by to learn about America and its values and rich history….

When we talk of justice and Homeland Security and the laws of this nation, even illegal immigrants, law breakers…I remind you that….

“The ‘Founding Fathers’ were strong advocates of republican values, especially Samuel Adams, Patrick Henry, George Washington, Thomas Paine, Benjamin Franklin, John Adams, Thomas Jefferson, James Madison and Alexander Hamilton.[23]

Thomas Jefferson defined a republic as:

“ …a government by its citizens in mass, acting directly and personally, according to rules established by the majority; and that every other government is more or less republican, in proportion as it has in its composition more or less of this ingredient of the direct action of the citizens. Such a government is evidently restrained to very narrow limits of space and population. I doubt if it would be practicable beyond the extent of a New England township. The first shade from this pure element, which, like that of pure vital air, cannot sustain life of itself, would be where the powers of the government, being divided, should be exercised each by representatives chosen…for such short terms as should render secure the duty of expressing the will of their constituents. This I should consider as the nearest approach to a pure republic, which is practicable on a large scale of country or population … we may say with truth and meaning, that governments are more or less republican as they have more or less of the element of popular election and control in their composition; and believing, as I do, that the mass of the citizens is the safest depository of their own rights, and especially, that the evils flowing from the duperies of the people, are less injurious than those from the egoism of their agents, I am a friend to that composition of government which has in it the most of this ingredient.[24] ”
The Founding Fathers discoursed endlessly on the meaning of “republicanism.” John Adams in 1787 defined it as “a government, in which all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject to the laws.”[25]”

and firther,

“Military Service

Civic virtue required men to put civic goals ahead of their personal desires, and to volunteer to fight for their country. As John Randolph of Roanoke put it, “When citizen and soldier shall be synonymous terms, then you will be safe.”[51] Scott (1984) notes that in both the American and French revolutions, distrust of foreign mercenaries led to the concept of a national, citizen army, and the definition of military service was changed from a choice of careers to a civic duty.[52] Herrera (2001) explains that an appreciation of self-governance is essential to any understanding of the American military character before the Civil War. Military service was considered an important demonstration of patriotism and an essential component of citizenship. To soldiers, military service was a voluntary, negotiated, and temporary abeyance of self-governance by which they signaled their responsibility as citizens. In practice self-governance in military affairs came to include personal independence, enlistment negotiations, petitions to superior officials, militia constitutions, and negotiations regarding discipline. Together these affected all aspects of military order, discipline, and life.” -

Christopher Tingus
“Main Street USA”
PO Box 1612
Harwich (Cape Cod), MA 02645
chris.tingus@gmail.com

Comment by William R. Cumming

March 27, 2013 @ 10:17 am

When ever “law enfocement” is discussed it should always distinguish between enforce of the civil laws and enforcement of the criminal law [codes]!

Note that criminal laws never really have implementing regulations but rely on knowledge of the case law for their analysis and enforcement.

As of yesterday drug sniffing dogs not allowed on porches without a warrant.

Comment by Chuck Eaneff

March 27, 2013 @ 11:12 am

Mr. Palin,
Very subjectively, I don’t believe law enforcement profession is exercising less discretion in the “administration of justice,” than in the past, but your question cuts right to the heart of the matter.

I do perceive that over the last generation there has been a tendency to narrow the role of discretion — and increase the place of rules — however I believe it is taking place in the administration of homeland security, not justice. It would be interesting to further explore your perception and whether it is based on the treatment of the public by government, by Homeland Security officials, or by law enforcement conducting homeland security activities. I suspect it would not be based on experience with the more traditional roles of policing.

I am arguing that, among other lessons, the the hard lessons learned in the administration of justice regarding legitimacy in enforcement activities and public compliance be better integrated into the study of homeland security. I don’t believe anyone familiar with FBI efforts thinks that integrating national security and justice is easy – and the FBI is an investigative agency, not primarily engaged with day to day routine enforcement contact with the public. Studying homeland security with defense blurs the line between national security and homeland security – without justice as an equal, we may achieve national defense, but never long term security. I am not arguing that rule based security is wrong, bad, or unneeded, but that merging of national security and homeland security systems IS bad – merging national security, homeland security, and justice systems is required to achieve security.

There are many great resources that discuss discretion in the administration of justice; I particularly like Herman Goldstein and Mark Moore writings. In the context of crime and related outcomes I think Moore (2003) tied justice as a strategy to achieve security very well:

Police Legitimacy as a Means and an End
… judge their police department to be fair, honest, or competent, and whether they feel that they can trust the police to deal fairly and justly with an issue that concerns them.
… In essence, the thousands of individual transactions that the police have with individual citizens can aggregate up to a social perception of the police as a legitimate or illegitimate force. That, in turn, is valuable as an important social result of police operations. All other things being equal, society is better off if the police are viewed as a legitimate and fair instrument of justice than if they are viewed as illegitimate and unfair.
But it is also important to note that however valuable it is for the police to enjoy legitimacy with citizens as an end in itself, police legitimacy is also valuable as a means of becoming more effective in controlling crime. The reason is simply that the success of the public police in preventing and controlling crime depends crucially on assistance from individual private citizens. If citizens do not trust police motives or capabilities, they will withhold their support. …That, in turn, will weaken the overall effectiveness of police operations…

Comment by William R. Cumming

March 27, 2013 @ 11:51 am

P.S.

Just as we all trust the Cop on the Beat [that we know is not a Constitutional lawyer] with the decision not to fire into the crowd to kill or disable the fleeing PERP it might be assumed that a clear cut decision making process and good judgment exists in the FBI and elsewhere that in the case of an actual terrorist event or incident the public good is not always percieved as protecting the public from harm but instead capturing, killing, or disabling the PERP above all other concerns.

Troubling in my mind!

Comment by Philip J. Palin

March 27, 2013 @ 11:55 am

Mr. Eaneff:

Thank you. My perception emerged as much from minimum sentencing requirements for the judiciary and so-called “zero-tolerance” policies by some police departments as anything else. In any case, I would prefer to believe that professional discretion and the rule of a “reasonable person” continue to characterize law enforcement… so I will happily defer to your more informed judgment.

I testified to Congress against the integration of the Homeland Security Council staff and the National Security Council staff. My rationale included aspects of your argument. I’m sorry that battle was lost… and the consequences are largely as I anticipated and you outline.

So having lost that decisive battle, what is left to us? Not much. But there may be a long-term opportunity to reform the national security community’s self-definition to be more receptive to your notion of discretion. I am not holding my breath. In fact, I am practicing deep breathing.

Comment by Chuck Eaneff

March 27, 2013 @ 12:26 pm

Mr. Palin, Your observation regarding minimum sentencing great example (whether one perceives minimum sentencing as “good” or “bad”)of the impact of rule driven decisions in the justice system.

Education is left.

Cooley Law School is starting a Master’s program in Homeland Security and National Security Law. http://www.lansingstatejournal.com/viewart/20130306/NEWS06/303060045/Cooley-Law-School-starts-homeland-security-degree

I am advocating that this combination of national, homeland, and justice is the right educational mix not just for lawyers, but for all government security practitioners.

Comment by William R. Cumming

March 27, 2013 @ 2:23 pm

I was involved in the early editions of Professors Peter Raven-Hansen and Stephen Dycus National Security law text. The first at George Washington U. Law School and the latter at the University of Vermont. They wondered whether there was a need and I said only law stands between US and the IMPERIAL PRESSIDENCY.

Peter tells me that his case book is now in 7th Edition and that while not used by all, National Security Law is the most popular elective in law school.

One of my arugments for the course was the following. Many lawyers in small and medium and even large cities by the end of 20 years of practice are to sum up BORED. So many get involved one way or another in politics. Some end up as Mayors, State delegates, Governors, Members of Congress and even Senators and Presidents. My hope was that democracy must be defended each generation and it was appropriate to study the underpinnings of the National Security State.

President Obama’s law school curricula and grades have never been made public. And I always will wonder if he used an early version of Peter and Stephen’s Case Book in any way.

Comment by William R. Cumming

March 27, 2013 @ 2:25 pm

I have also recommended National Security Law by Raven-Hansen and Dycus to many many political science, public administration, and government professors. After all it is written in English.

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