Homeland Security Watch

News and analysis of critical issues in homeland security

February 11, 2014

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on February 11, 2014

This is the tenth in a series of posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text reproduced immediately below.

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Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

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Law presumes to frame the future.  It especially endeavors to put boundaries around risk. In making law a tyrant, legislature, judge, regulator, or free persons entering a self-made contract consider possibilities and say: this far and no farther.

Publius (probably Madison) argues, “In republican government, the legislative authority necessarily predominates. ” (Federalist 51)  It was clearly the intent and expectation of the Framers at Philadelphia that Congress would predominate.

In our time this singular authority of Congress has been supplemented.  In 1928 the US Supreme Court found in J.W. Hampton, Jr., & Co. v. United States that legislative authority could be delegated so-long as Congress, “shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform…”

In Mistretta v United States (1989) the Court explained,

Applying this “intelligible principle” test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

From such small seeds the s0-called Administrative State has grown large, including components of the Department of Homeland Security.  On this legal basis agencies make law (try to frame the future) in a manner consistent with intelligible principles set out by Congress and understandings of emerging context.

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The bicameral character of the federal legislature emerges principally from political compromises used to persuade less populous states to support the Constitution.  The Federalist, see especially No. 62, notes three substantive benefits that might serendipitiously emerge from this political necessity:

First,  two legislative bodies will seriously impede the ability of any foreign or domestic cabal from seizing authority.

Second, longer-serving Senators less responsive to the electorate will help contain the sometime over-wrought passions of the demos. (Recall Senators were not elected directly by voters until 1913.)

Third, by virtue of serving longer — and probably being drawn from those with legislative experience at the state level — Senators are more likely to exercise wisdom regarding the “objects and principles of legislation.”

Further to the third point, Madison (or Hamilton, historians disagree on No. 62) offers:

It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people of the value of those aids which may be expected from a well constituted senate?

More than two centuries of legislative history convinces me of these bicameral benefits.  But the decade-plus since the Department of Homeland Security’s creation has coincided with a particular trough in Congressional effectiveness.  Over this period a case can be made that one body or the other has served to mitigate a greater harm originating in the other body.  But over this particular time in regard to homeland security, two chambers has probably meant mostly double-trouble.

February 7, 2014

Quick thoughts on Sec. Johnson’s inaugural policy speech

Filed under: Congress and HLS,DHS News,General Homeland Security — by Christian Beckner on February 7, 2014

I just returned to my office from the well-attended policy speech that new DHS Secretary Jeh Johnson gave today in DC at the Wilson Center.  The full webcast of the event is now online here, so I won’t attempt to summarize the event in full, but wanted to make three quick points on issues that I found to be of interest in the speech:

1. The role of the DHS Secretary on homeland security and counterterrorism issues.  One of the key principles of the Homeland Security Act of 2002 was to establish the Secretary of DHS as the nation’s preeminent and accountable leader on homeland security and counterterrorism matters, in addition to being the chief executive of the constituent parts of DHS.  The reality as to the DHS Secretary’s assertion of that role has evolved episodically in the last decade, with officials in the White House or in other cabinet agencies sometimes asserting aspects of that authority.  I thought that Sec. Johnson’s remarks were very strong in implicitly reasserting the preeminent role for the DHS Secretary, particularly with respect to his discussion of issues such as the evolving terrorist threat, both overseas (with a notable emphasis on Syria) and within the U.S.

2. Relationship with Congress.  As a former Senate staffer, Sec. Johnson’s remarks on his prospective relationship with Congress left me optimistic about his ability to work with Congress in a constructive way, particularly with respect to the two overriding legislative priorities for DHS: immigration reform and cyber security legislation.  He mentioned doing unscheduled “drop by” visits earlier this week with a number of members of Congress – a level of direct and personal outreach that if sustained will help to overcome some of the barriers to getting things done on the legislative front.  He also acknowledged that Congress still needs to deal with its long-fragmented oversight structure on homeland security issues, and that at some point he will have to have a discussion with members of Congress about realignment with respect to homeland security.

3. DHS vacancies and employee morale.  Sec. Johnson discussed what he has been doing to address the issues of DHS vacancies, highlighting the existing nominees (NPPD, Inspector General, CBP, USCIS, and Science & Technology) who were still awaiting Senate action, and noting that he was prioritizing efforts to find nominees for the remaining vacancies, mentioning the Intelligence & Analysis, ICE and CFO positions.   He also briefly touched on the issue of employee morale, which he had indicated during his Senate confirmation process would be an immediate priority.  If there had been open Q&A during the event, I was prepared to ask him about his initial observations on the root causes of such morale issues and if he had any initial thoughts on how to address such challenges.  It is critical that this issue remains on the front burner; ultimately, the ability of any Secretary of DHS to accomplish his or her policy objectives is contingent on an effective and motivated career workforce that has trust in its first-level and senior leadership.

Overall, the event was a very insightful discussion with the new Secretary, with excellent questions from former Congresswoman Jane Harman, and one that leaves me optimistic about the leadership of the Department in the coming years.

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on February 7, 2014

On this date in 1812 the strongest of many aftershocks hit the mid-Mississippi River valley.  Earthquakes began in December.  On February 7 an estimated 7.7 hit again.

On this date in 1904 a fire destroys over 1500 buildings in Baltimore. One death is blamed directly on the fire.  On this day in 2009 more than 170 Australians are killed in a wildfire.

Today the Sochi Winter Olympics officially begin.  The opening ceremonies are widely thought to be a significant terrorist target.

What’s on your mind related to homeland security?

February 6, 2014

How do you calculate the area of the triangle?

Filed under: General Homeland Security — by Philip J. Palin on February 6, 2014

HS Triangle

How do we calculate the area of homeland security?  Is there a third dimension?  Can we imagine a fourth?

Natural: Chronic drought 

Accidental: Spark or flame ignites brush

Intentional: Vandalism, arson and/or terrorism, developing the urban/wilderness interface

Natural: Snow and ice

Accidental:  Fender-benders and worse, surging volume, sagging power-lines (see below for entropy, stress, fatigue and related)

Intentional: Voluntarily piling onto already clogged and/or dangerous roads; evacuating into higher risk

Natural: Rivers flow, flood, and dry-up

Accidental: Incremental concentration of hydration, sanitation, and or commerce resulting in contamination and/or exhaustion

Intentional: Failure to adjust behavior after consequences of accidental outcomes

Natural:  Long-cycle sea rise and more intense storms

Accidental: Legacy use and construction 

Intentional:  Public subsidization of private risk, persistent concentration to river sides and sea sides

Natural: Human socialization

Accidental: Social stratification, separation, specialization, alienation

Intentional: Oppression and/or resentment and/or dehumanization of one social group by another (may emerge into various forms of  deadly aggression)

Natural: Various infectious agents, disease, pandemic

Accidental: Animal-to-human and human-t0-human transfer (see human socialization)

Intentional: Weaponization

Natural: Entropy, stress, fatigue

Accidental: Breakage and failure

Intentional: Explosive and/or continual stress to generate specific failures (see human socialization and related)

Natural: Complex cascades

Accidental: Unpredictable punctuation

Intentional: Purposeful punches and/or negligent choice and/or active denial of reality

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Natural: Relating to the material world, especially as surrounding humankind and existing independently of human activities. (Latin natura: condition of birth)

Accidental: Relating to any event that happens unexpectedly, without a deliberate plan or cause. (Latin Latin accident: happening, present participle of accidere to befall)

Intentional: Relating to have in mind as something to be done or brought about or plan for purposeful implementation, especially if self-serving. (Latin intendere: to stretch towards, aim at)

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Equilibrium is death. Change is catastrophic.

We must adapt because we cannot predict. 

Per Bak

February 5, 2014

More struggles with the meaning of homeland security

Filed under: General Homeland Security,Terrorist Threats & Attacks — by Arnold Bogis on February 5, 2014

Brian Michael Jenkins has a piece at Slate on “The Real Homeland Security Issues for 2014.” Let me end the suspense now — every “issue” is terrorism related.  Not one mention of natural, technological, or other non-terrorism issues.

I can’t blame Jenkins.  At least not entirely.  He is an expert on terrorism.  As they say in baseball, he’s not just a guy but a GUY. Perhaps THE GUY.  You’ve heard the phrase that terrorists want “a lot of people watching but not a lot of people dead?”  That’s him in Congressional testimony from the 1970s.  So it is to be expected that he concentrates on the terrorist threat.

What concerned me, I suppose, is that years after Katrina and not so long after Sandy he still frames homeland security issues solely  in the language of counter-terrorism.  What I can’t figure out, what we’ll possibly never know (unless one of you know him), is why he chose to frame his essay in the language of homeland security.

He could have chosen to reference counter-terrorism or national security or just simply security.  Instead, he made a point of highlighting homeland security:

As Congress sets its agenda for hearings and legislation relating to homeland security, we can anticipate some of the issues it will address. Expect discussion about whether al-Qaida is on the run or on the rebound, new legislative initiatives on how to deal with the continuing threat in cyberspace, beefing up security on the border, and the National Security Agency’s collection of metadata, to name just of few. These should be matters of great public interest, and they are. According to recent public opinion polls, 75 percent of Americans see terrorist attacks in the United States as a continuing threat, although they are close to evenly divided on whether the government can do more to stop them. But as legislators work their way through these matters, here are some fundamental issues of threat, risk, public expectation, and the protection of liberty and privacy that merit debate.

To give credit where credit is due, he does ask some good questions/brings up some good points. If you’re only concerned about terrorism. His outline:

What is the terrorist threat?

Ensuring homeland security in an era of budget constraints.

Homegrown terrorism and domestic intelligence. 

Does the need for collective security threaten individual liberties?

But what about everything else? At this point, should a basic understanding of what should be included in homeland security still elude any serious analyst? National security is still an amorphous topic, but the basics are not in much dispute. Jenkins doesn’t pretend that a national security discussion should only include the topic of terrorism. Is it too much to think that if you use the term “homeland security” you are at least entertaining the possibility that something non-terrorism is included?

Or is this a symptom of a wider problem? Are constituencies still talking past each other? Absent a recent natural disaster, does the federal government, and those who primarily serve federal agencies, default to the terrorist threat when considering the issue? Is it simply sexier than worrying about the intrinsic messiness that comes with natural events?

The following cartoon hits this nail on the head.  (Hat tip to Bill for pointing it out in the comments of a previous post.)

 

 

February 4, 2014

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on February 4, 2014

This is the ninth in a series of posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.

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THE PREAMBLE

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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We the People of the United States are plural cultures, experiences, values, and folk-wisdoms uprooted, transplanted, hybridized, commercialized, and offered as new and improved to all.

This diversity of background has certainly been amplified since the Constitution was crafted.  But our polyglot character was present — and recognized — at our genesis.

Our founding emerged from separation, often arising from national, religious or political differences which were then reinforced, even multiplied by the physical distance between ourselves and the places from whence we came.

Our founding emerged from a time and spirit-of-the-times in the midst of becoming profoundly skeptical of received tradition.  The Founders were especially cognizant of their (our) limitations and the thereby treacherous task of creating a nation ex nihilo.

A long quote of Madison from Federalist 37:

Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy…

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs…

Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. 

Knowledge is uncertain.  Wisdom is fleeting and even then incomplete.  Yet we are called to live and apparently to live together.  So how do we frame a process by which we might make a common way through this jungle of inaccuracy, imperfection, and our each and every inadequacy?

The Framers chose to leap beyond the prior reality of organic communities formed of unfolding generations, similar backgrounds, and widely held — if never universal — opinion.  They chose — they risked — the creation of something entirely new.

They ordained — they wove of many threads — an unprecedented pattern. They established, they constructed a dwelling on a firm foundation in which they and we could abide together not just tolerating, but celebrating and benefiting from shared diversity.

The structure has occasionally failed and it has certainly been abused.  Doors have been slammed.  Fires have claimed whole wings.  Family members exiled and murdered.  Strangers in desperate need turned away.  There are ghosts of old evils that still haunt us.  There are weird uncles and worse who live among us now.

But it remains a grand place.  Consistent with its founding and framing, it is especially hospitable to discovery, invention, and celebration of what is new.   This has become our tradition: the overturning of tradition.

Homeland security was conceived to give particular and innovative care to this our common home.  We are, in a way, the maintenance crew for a vast laboratory of sometime mad scientists.  We keep the lights on, water flowing, HVAC churning, haul away debris, and help everyone stay safe.  But we don’t want to get in the way of the ongoing work of exploration and creation.  We may even have a role in co-creating.

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