Homeland Security Watch

Yesterday several DHS officials and others were on the Hill giving testimony related to the new National Strategy for Global Supply Chain Security.  Please see: http://homeland.house.gov/hearing/subcommittee-hearing-balancing-maritime-security-and-trade-facilitation-protecting-our-ports

Three quick impressions:

1. Constructive example of “stovepipes” being brought together around a supposedly stovepipe-busting strategy.

2. The tension between security and resilience is real, persistent, and difficult to effectively engage.   Security is tough enough.  Resilience requires even more creativity.

3. It is striking to have a hearing on this topic without hearing directly from the private sector as well.

This is an early step in rolling-out the new strategy.  Much more to come.

A short time before President Obama delivered the annual state of the union address to a joint session of Congress, a media outlet I follow Tweeted a summary attributed to Vice President Joe Biden: “Osama bin Laden is dead, GM is alive.” The president spoke for more than an hour this evening, but that just about sums it up from a homeland security perspective.

The elimination of bin Laden and the routing of al-Qaeda’s leadership since President Obama took office is arguably the singular foreign policy accomplishment of his presidency. His administration achieved much of its success on this front by all but ignoring promises it made to its political base and taking actions even his Republican predecessors seemed to shy away from in scale if not necessarily in scope.

It might not be fair to suggest that President Obama’s admiration for the military expanded with his ascendence to the office of commander-in-chief. The two most significant role models in his young life beyond his own mother were his maternal grandparents in Kansas. His grandfather, he reminds us, served in Patton’s army while his grandmother assembled bombers back home. The experiences that shaped them clearly left an indelible impression on him as a young man and inspire his sense of duty even today.

The president’s address tonight made it clear that he sees the armed forces as a model of what America can be when it tries to be its best. In many ways, I agree. The U.S. armed forces are truly a model of diversity, innovation and adaptability. But what can be said of the armed forces cannot necessarily be said of the armed services.

Of those American institutions that did not atrophy from lack of attention or loss of investment, many have become sclerotic as money, influence-peddling and political polarization have conspired to clog the arteries of our democracy. The resulting death spiral threatens the American Dream and has all but snuffed out our faith in a better future. From his opening remarks to his conclusion, the president called upon Americans to see in the can-do example of our fighting forces the inspiration to revive our democracy and the incentive to renew our nation.

As with previous addresses, the president emphasized the need to establish clear priorities and make smarter choices. He called on Congress to work with his administration to create an America “built to last.” To do this, he called for the restoration of an economy “where everyone gets a fair shot, everyone does their fair share, and everybody plays by the same set of rules.”

Calls for renewed investments in education, energy innovation and infrastructure took center stage once again this year despite the president’s acceptance of the need to make further spending cuts in other areas, including entitlements. At several points, he noted how government investment had created the very opportunities our men and women under arms have fought to protect and that have benefited the wealthiest among us.

The president’s address not only displayed the rhetorical strengths for which he is rightly admired by supporters and reviled by opponents. His remarks also revealed a growing sense of pragmatism and purpose. The president made it clear that he will meet Congressional obstruction with action. One particularly clear indication of his intentions come from his emphasis on regulatory reforms that will enable some of the savings from defense cuts to be put to work on “nation-building right here at home.”

Before President Obama arrived on Capitol Hill tonight, Speaker of the House John Boehner remarked to the media that the president’s address would amount to little more than a campaign stump speech. Clearly, this president knows the campaign has already begun. And he knows too that re-election is no certainty. But he also seems more committed to reinforcing his accomplishments and taking the fight to his opponents than he did last year.

Something tells me any effort by Republicans to prematurely rewrite Biden’s pre-SOTU summary to serve as an epitaph for this administration — “Obama’s dead, America’a alive” — have another think coming.

In prior posts I have argued against several provisions of the the National Defense Authorization Act.  On New Year’s Eve, the President signed the legislation.  It is now law.

I am not concerned — have never been concerned — about the immediate implications of the law.  I am deeply concerned regarding how it may be applied at some future date.  I am saddened by what overwhelming, bipartisan passage of the law seems to say regarding Congressional commitment to the foundations of freedom extending at least to the Magna Carta.  That the executive has chosen to accept the gift of additional power is not surprising, this is the innate tendency of the executive.  That the legislature has enthusiastically authorized such extraordinary power is profoundly troubling.  The current executive promises to exercise restraint. In a future crisis, how may a less reluctant executive choose to exercise this power?

Following is a statement by the President on his decision.

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Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.” I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then. Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States. As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention. I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law. And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees. Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court. Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation. Removing that tool from the executive branch does not serve our national security. Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles. The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals. I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment. Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference. Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided. While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems. Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments. Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning. My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.

BARACK OBAMA
THE WHITE HOUSE,
December 31, 2011.

The following is quoted verbatim from page A-22 of the New York edition of the November 30 New York Times.  I do not have time for further comment, but felt it was too easy to miss and too important not to call out.  See more at the Times.

By a vote of 61 to 37, the Senate turned back an effort to strip a major military bill of a set of disputed provisions affecting the handling of terrorism cases. While the legislation still has several steps to go, the vote makes it likely that Congress will eventually send to President Obama’s desk a bill that contains detainee-related provisions his national-security team has said are unacceptable.

The most disputed provision would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.

A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens. It is intended to bolster the authorization to use military force against the perpetrators of the terrorist attacks of Sept. 11, 2001, which lawmakers enacted a decade ago…

Among Republican senators, there was nearly unanimous support for keeping the detainee provisions in the bill: 44 Republicans voted for them, while two — Mark Kirk of Illinois and Rand Paul of Kentucky — voted to remove them. By contrast, members of the Democratic caucus were deeply divided: 35 wanted to strip the detainee provisions from the bill, but 17 voted to keep them in it.

A previous post on the issue is available here.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment to the Constitution of the United States

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Because most readers of Homeland Security Watch are also  news-nerds you may have noticed we killed another US citizen recently. Abdulrahman al-Awlaki the sixteen year old son of Anwar al-Awlaki was killed during a drone attack in Yemen.   The young American was traveling with Ibrahim al-Banna, media chief of Al Qaeda in the Arabian Peninsula, the presumed target of the attack.

Abdulrahman al-Awlaki

Abdul had the bad luck of being in the wrong place at the wrong time, in the care of bad guys, and being the son of a very bad guy. As far as we know though, he was not directly involved in planning or implementing terrorist actions against the United States.  No legal action had been taken in his regard, certainly no Grand Jury indictment.

There are some rumors (but only rumors) that al-Banna was taking Abdul and a 17 year-old cousin (also killed) to visit the remains of his father.

The US government does not officially comment on our drone operations in Yemen (or Pakistan).  While we have acknowledged the death of both father and son, we did not discuss the means or our involvement in the means.

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I was surprised when reminded of the Bill of Rights use of “person” rather than “citizen.”   It has been an instructive surprise.

The differences between person and citizen have proliferated since the first amendments were adopted in 1791.   The French Revolution, the 14th Amendment, and increasing international mobility have all served to give enhanced attention to the  rights of citizenship.

But the Constitution still refers to persons.

The classical Latin persona was a  mask as used in Greek plays: A temporary and even misleading representation.  The early Christian church transformed our understanding of the word when Tertullian used it to explain the distinct “persons” of the Trinity.  Each person of the Trinity is a particular expression of an essential unity and substantive reality beyond the individual manifestation.

Through a complicated process of ecumenical councils, Medieval scholasticism, popular misunderstanding, and much more, Western culture came to view each individual as an expression of the divine.  This is the foundation of natural rights and the personhood of English Common Law.

The rise of nationalism has challenged the universalist claims of personhood.   Increasingly it is citizenship —  national identity — that matters, not some tendentious claim to being a child-of-God.

Congress is currently considering a new measure which would further diminish the personhood of non-citizens.    As adopted by the House of Representatives,  Section 1046 of the Defense Authorization Act reads,

After the date of the enactment of this Act, any foreign national, who–

(1) engages or has engaged in conduct constituting an offense relating to a terrorist attack against persons or property in the United States or against any United States Government property or personnel outside the United States; and

(2) is subject to trial for that offense by a military commission under chapter 47A of title 10, United States Code;

shall be tried for that offense only by a military commission under that chapter.

This section is causing consternation among some Senators and administration officials. The General Counsel for the Department of Defense has critiqued this legislation as follows:

Section 1046 of the House bill imposes an across-the-board requirement that, if military commissions jurisdiction exists to prosecute an individual, we must use commissions, not the federal courts, for the prosecution of a broad range of terrorist acts. Decisions about the most appropriate forum inwhich to prosecute a terrorist should be left, case-by-case, to prosecutors and national security professionals. The considerations that go into those decisions include the offenses available in both systems for prosecuting a particular course of conduct, the weight and nature of the evidence, and the likely prison sentence that would result if there is a conviction. A flat legislative ban on the use of one system – whether it is commissions or the civilian courts — in favor of the other is not the answer.

A weak procedural critique, it seems to me.

Since the Constitution was adopted “due process of law” has changed in a variety of ways.  Military commissions meet a minimum test of due process.  But it is very difficult to imagine James Madison smiling at the prospect of military officers being preferred as the agents of the judicial power set out in Article III.

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We are increasingly inclined to treat non-citizens as non-persons.  Our rights are less and less a matter of the dignity due any child of God.   For many, a non-citizen obviously does not deserve the rights of a citizen.  The non-citizen is inherently other and the other is innately a possible threat.  This is an entirely reasonable judgment based on a purely nationalist perspective.

Abdulrahman al-Awlaki, born in Colorado, fan of The Simpsons and Harry Potter, was a citizen.  Some would claim he was also a suspect other and potential threat.   His personhood?  His citizenship?  Nice abstractions for a courtroom perhaps, but distractions in the midst of deadly conflict… others would argue.

I am concerned that as the source of our rights shift from existential personhood to instrumental citizenship our sense of shared identity and common dignity is diminished and the very concept of fundamental rights is weakened.

The Constitution still refers to persons.

The Budget Control Act of 2011 — aka the debt ceiling deal — formalizes a set of national security relationships seldom identified for common treatment.  According to the Act:

The term ‘security category’ includes discretionary appropriations associated with agency budgets for the Department of Defense, the Department of Homeland Security, the Department of Veterans Affairs, the National Nuclear Security Administration, the intelligence community management account (95–0401–0–1–054), and all budget accounts in budget function 150 (international affairs).

One other category — non-security — is created by the Act.

The statutory language is not entirely clear to me, in fact it is very obscure to me.  But in conversation with others I understand that by setting certain budget limitations on discretionary spending the debt deal is designed to encourage real horse trading on crafting a more reasonable budget.

For example, the debt deal says that unless other budget targets are achieved, discretionary spending shall be capped as follows:

With respect to fiscal year 2012- ‘‘(A) for the security category, $684,000,000,000 in new budget authority; and (B) for the nonsecurity category, $359,000,000,000 in new budget authority; ‘‘(2) with respect to fiscal year 2013— ‘‘(A) for the security category,  $686,000,000,000 in new budget authority; and  ‘‘(B) for the nonsecurity category, $361,000,000,000 in new budget authority;

These and other limitations on each of the two categories extended over the next ten years are so draconian that partisans of each category will supposedly be motivated to make other smarter and more specific cuts or authorize revenue increases in order to avoid the caps in the debt deal.

Whether or not mutual hostage taking ought be quite so central to crafting the federal budget is a topic for another day and, probably, a different blog.

Appropriate to the purposes of HLSWatch are the implications of Homeland Security sharing the same farrowing shed as defense, intelligence, the National Nuclear Security Administration, foreign affairs, and veterans.

A farrowing shed is where the mother sow gives birth and initially cares for her pig litter (I expose my rural Illinois origins).  In making this analogy I am not trying to say anything about pork-barrel politics.  Rather, I am suggesting a significant shift in the favored place of Homeland Security in the overall appropriations process.

For the last decade even when other appropriations were long-delayed, Homeland Security shared with Defense a place of honor at the top of the funding process.  Instead of a pig litter, in prior years HS might have been compared to a fine mare, named National Security, giving birth to twins. Certainly HS is much smaller than the first-born Pentagon, but HS has been given lots of attention precisely because of its comparative weakness.

Now DHS and its components are just one of many national security piglets, and arguably the runt of the litter.

While homeland security has usually not needed to compete head-to-head over funding with other national security players, it does regularly compete over policy attention, political priorities, and prestige.  It does not often win if the others play hard.

After a decade of war — and casualties — it is difficult to imagine significant cuts to the Department of Veterans Affairs and easy to imagine moral and pragmatic cause for increases.  For example, VA benefits are specifically protected in the debt deal.

Just given what is happening with nuclear proliferation — and the comparatively small size of its budget — the Energy Department’s National Nuclear Security Administration is unlikely to be seen as a candidate for meaningful budget-cutting.  Like a miniature albino pig, NNSA is more likely to be prized than paupered.

Foreign aid is a perpetual target, but it only totals $30 billion. Eliminate it and the long-term debt will barely twitch. The entire State Department annual operating budget is only a bit more than $14 billion.

Defense is and will remain the big boy of the lot.  The intelligence community is increasingly yoked to Defense.  The full intelligence budget — military and civilian — is mostly classified and tough to track, much less cut.

Within this “security category” the battle over priorities — financial and otherwise — will mostly be between the military, the diplomats, the spies, and the homeland security guys-and-gals.  The other three have more history, stronger political, commercial, and academic networks, more intellectual capital, often dress better — though Coast Guard uniforms are stylish — and are usually much more effective exercising influence.  Consider yesterday’s preemptive strike by Secretary Panetta and Admiral Mullen.

The real budget battle will be over Medicare cuts and revenue increases.  What will the security category need to symbolically and substantively contribute to this fight?  Certainly Defense will give the most.  But whatever is required of the entire litter, the runt is likely to contribute proportionally more.

The Congressional Research Service (specifically the stalwart Bruce R. Lindsay and redoubtable Francis X. McCarthy) has produced a new study entitled: Considerations for a Catastrophic Declaration: Issues and Analysis. It was released to Congress on June 21 and has subsequently been made available to the public by the Federation of American Scientists.

As with most CRS products the report is comprehensive, credible, and cautious. The analysis provides a helpful overview of the current policy landscape. The CRS is not tasked to advise or innovate. The CRS is tasked with even-handed research and reporting to inform members and their staff of options and major issues, usually bounded by the traditional policy frameworks recognizable to their principal audiences.

Some key outputs from the report:

If amended, the Stafford Act might provide a declaration for what might be classified as a “megadisaster” or “catastrophic disaster.” It is unclear, however, what differentiates a disaster from a catastrophe. (Page 4)

A catastrophic declaration may be used to trigger certain mechanisms before, during, and after a catastrophe. Policymakers might also elect to apply a catastrophic declaration to one or more phases of the incident. (Page 5)

Given the number of large-scale disasters occurring in the last 30 years, one might conclude that large-scale disasters are occurring more frequently—which might support an argument for a catastrophic declaration. A counterargument, on the other hand, is that in terms of damage costs, only Hurricane Katrina truly qualifies as a catastrophic event when compared to other, recent incidents. It might be further argued that while many of the most expensive disasters have occurred in recent years, the increased costs associated with such incidents are a function of variables that are not necessarily related to the magnitude of the incidents (such as increased federal expenditures for assistance and recovery projects, the replacement of expensive infrastructure, and the development of previously uninhabited areas). (Page 12)

Upon reviewing the results of the comparative analysis of destructive incidents, it could be argued that highly destructive events occur too rarely to warrant a catastrophic declaration. Using the 90th percentile as a benchmark, only one event in the last 140 years would be catastrophic and only four would qualify if the 80th percentile is used as a benchmark. Similar conclusions might be drawn on the comparative analysis of combined VSL and damage estimate costs—specifically, that high-impact events are too infrequent to merit the addition of a new declaration category—only one incident in the last 100 years meets the 90th percentile threshold. Additionally, the threshold would have to be adjusted to the 20th percentile to include more than one incident. Critics of the additional declaration might further argue that VSL is a poor determinant for a catastrophic declaration because federal assistance is predominately tied to recovery projects rather than victim or survivor compensation. (Page 15)

Depending on its design, certain benefits may be derived from using a catastrophic declaration for large-scale disasters, including:
• accelerated and more robust federal assistance to states prior to an incident,
• the use of specialized response plans and guidelines for the federal response,
• the elimination or reduction of procedures and protocols that might impede response and recovery activities and efforts,
• the elimination or reduction of procedures and protocols that might delay the disbursal of federal assistance, and
• increasing the amount of federal assistance through various mechanisms to help states recovery more quickly and avoid economic hardship.

The potential drawbacks of a catastrophic declaration may include:
• unclear authority and responsibility designations could confuse those responsible for executing the response and recovery,
• increased federal costs for disaster assistance due to increased declaration activity,
• increased federal costs for disaster assistance due to the increased federal costshare provisions included with the declaration, and
• increased federal involvement and responsibility for incident response. (Page 17)

Please do not mistake the summary above as equal in value to the full CRS narrative.

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Now for something completely different, as my fourth-cousin Michael has been known to say, you might review the pdf linked below. Where Lindsay and McCarthy are quantitative, the authors of this working draft (including yours truly) are more qualitative. Where CRS is reporting what is known and avoids advocacy, this other document explores admitted unknowns and advocates innovation in catastrophe preparedness far beyond the typical writ of Congress. The CRS report says little about private sector catastrophe preparedness; the other document is full of private sector implications and calls-to-action.  One report is authoritative, the other wants to be provocative.  The CRS report is official.  There is nothing official in the working draft offered below.

The document accessed through the link is nearly 25 megabytes, so don’t give up too soon. If you have concerns or suggestions, this is a working draft and changes and additions will continue to be made through the middle of August.

Catastrophe: Definitions, Characteristics, and Proposed Principles of Good Practice (Working Draft)

Over the past few days an interesting theme has emerged around homeland security budget deliberations. As Jessica, Chris, Phil and many commentators on their posts have pointed out, we have no shortage of views about what’s right or wrong with the way we’ve been spending money over the past ten years or about how we should spend money in the future.

As I read these interesting and very informative perspectives, I could not help but think that despite all the discussion of politics this situation is more a problem of policy and the tendency of politicians to confuse the two. The distinction I intend here is simple: Politics concerns itself with competing conceptions of the good related to who, why, where and what; policy extends these judgments by focusing on how, when and how much.

No doubt the competing narratives about whether we’ve spent wisely or whether the proposed cuts go too far are steeped in politics. But the policy questions raised by the decisions unfolding before us have very real implications for programs, processes, people and ultimately what we choose to call progress.

This last point — how we define progress — illustrates the central problem confronting politicians and policy analysts alike. Politicians tend to define success very differently from policy analysts.

A simple semantic distinction might make this problem clearer. Public officials often use the terms efficiency and effectiveness carelessly. If we’re talking about economic (aggregate) efficiency — welfare maximization — then they may not be all that different. But when we talk about efficiency the way the current budget debate seems to be — as a question of productivity or throughput, then it is far less clear that the two terms have the same meaning.

Indeed, when politicians frame budget cuts as a way to hold public administrators accountable, they usually want to improve productive or managerial efficiency, rather than aggregate efficiency. As a consequence, it should come as no surprise when policy analysts and public administrators raise concerns that these decisions will compromise the effectiveness of their programs.

This, of course, sets off a knee-jerk response on the part of politicians, who suspect that the policy analysts and public administrators are only concerned with their own welfare, not the public’s. For their part, the policy analysts and public administrators usually respond to such rhetoric by wondering aloud (albeit under their breath) about the parentage of their political masters.

I am not usually one to suggest that such complex problems have simple solutions, but this might be an exception to that rule. The current budget debate underscores why it is important for us to produce a better understanding of how homeland security contributes to aggregate improvements in welfare. These gains can take many forms, not all of which are economic in nature, but which nevertheless all have some form of value.

Security is a value. So is liberty. Clearly people have competing conceptions of what they would be willing to pay to feel secure. These decisions are in essence a question of how much liberty individuals are willing to sacrifice to feel safe.

We can monetize the value of security by asking ourselves how these individual decisions play out in light of different political or policy choices. Perhaps more importantly, we can assess the ways competing policies affect these tradeoffs. By questioning not just how much we have spent and on what, but also by examining how airport security, for instance, has facilitated or inhibited the desire of individuals to travel as measured by passenger trips taken and the health of the industry, we can assess whether our political choices and policies resulting from them have had their intended effects.

Obviously, these techniques have limitations. Not the least of which is the difficulty measuring how well our investments help us prepare for threats we have not yet imagined. These questions require politicians to trust the policy analysts and public administrators rather than second-guessing them and moving beyond the who, why, what and where to concern themselves with how, when and how much.

Gaining the trust to tackle these difficult questions makes it all the more important that we establish some common ground between the politicians and policy analysts when it comes to deciding what investments to make and how to make them. As such, both groups would do well to review a primer on welfare economics and transaction cost economics before the final vote on the budget.

Stock and commodity markets reacted negatively today to news that sluggish private sector hiring, slipping domestic manufacturing and sliding Greek sovereign debt ratings. Meanwhile, Congressional Republicans met with President Obama to discuss legislation to raise the debt ceiling following a show-vote on Tuesday meant to signal their resistance to any measure that fails to herald a new era of fiscal discipline in Washington. (Which, it should be noted, they regard primarily, if not solely, as cuts to domestic discretionary spending and entitlement programs.)

Although the economic situation in Germany and Japan are not much better than here in the United States (and some would argue much worse), the stories grabbing the biggest headlines in these countries are very different from those here at home. Indeed one might wonder whether the tables have now truly turned since the end of the Second World War.

Those Americans who worked to defeat the axis powers in World War II have come to be known as the Greatest Generation for their willingness both to make difficult decisions and to make significant sacrifices at home and on the battlefield for the sake of future generations. Their leadership benefited not only our generation, but those too of the nations they fought.

The turnabout decision this week by Germany to abandon nuclear power by 2022 and invest heavily in renewables with a target of supplying at least 80 percent of their domestic demand by 2050 reflects nothing short of a payback on our nation’s post-war investment in rebuilding war-ravaged Europe. Germany’s decision and the actions that must follow are no less ambitious than the mobilization of labor and capital required in the United States to supply the war effort 60 years ago. The German people will only succeed in reaching their goal through a combination of expanded capacity, technological innovation and significant reductions in demand through energy conservation and increased efficiency.

A segment of the population of that other great power of the war era has shown a different kind of foresight and fortitude that reflects a more personal sort of sacrifice. The lingering crisis at the Fukushima nuclear power plant has fueled the loss of faith in the government and is now mobilizing a segment of Japanese society that one might assume has every right to sit back and wonder what happened to the country they helped build as the successors to the generation defeated by our grandparents. Instead, this generation of retirees and grandparents is volunteering to expose themselves to dangerous levels of radioactivity by helping cleanup the damaged nuclear reactors rather than leaving the job to younger workers who would be more likely to suffer the long-latent effects of such significant radiation exposures.

In both instances, the decisions and actions we see taking center-stage overseas reflect the sorts of values that made our forebears great. At the same time, their presence, even prominence in the news from abroad makes their absence from our own political debate that much more glaring and indeed worrying for our stability, stature, security and future prospects of success.

What sacrifices are we willing to make to maintain our greatness? How hard are we willing to work? How much would we pay to remain an exemplar of the can-do spirit for other nations to follow?

Judging by the crisis of confidence afflicting both the political and economic spheres, it seems the answers to these questions are “not so much.” Our crisis will continue, if not deepen, unless those who can start doing. Americans should not expect leadership of the sort displayed in Germany and Japan this week to come from politicians alone. As the examples of our former rivals aptly illustrate, we need leadership at every level of our society if we are to restore our greatness.

Following is a good example of why pay walls are going up all over the web.  I have — contrary to my stated principles — reproduced in full a Dow Jones news story.

When we take action contrary to our principles we usually convince ourselves there is sufficient cause, good cause, even a noble cause.  In this case I am probably being lazy and expedient.

Even when our rationalizations have some validity we almost always pay the consequences sooner or later in ways predictable or not.  I have not been a fan of Senator Rand Paul.  But in regard to the Patriot Act we should at least be giving close attention to his arguments. (Please see video and transcript of the Senator’s comments on two failed amendments to the Patriot Act.)

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WASHINGTON (Dow Jones)–The U.S. House of Representatives voted to renew three key provisions of legislation granting law enforcement officials authority to conduct surveillance on suspected terrorists.

The Senate voted earlier Thursday to approve the extension bill, after resolving a week-long impasse over the legislation.

The House vote was 250 in favor, with 153 opposed.

With the House vote, Congress has completed its work on the bill, but it must still be signed by President Barack Obama by midnight EDT Thursday in order to avoid an expiration of the three provisions. Obama is in France for a meeting of the G-8 group of nations. A White House spokesman said the president will use an “automatic pen” to sign the legislation into law.

All week long, the Senate has been in a logjam over attempts, primarily by a single lawmaker, Sen. Rand Paul (R., Ky.), to amend the legislation. Paul, a self-styled libertarian, opposes the legislation and spent the last several days decrying it as an invasion of privacy.

As the deadline approached, top lawmakers and senior Obama administration officials began issuing stark warnings about the impact on the ability of the nation’s intelligence community to continue to do its job if the provisions were allowed to expire. James R. Clapper, the director of national intelligence, said in a letter this week to Senate leaders there could be serious repercussions for law enforcement’s surveillance efforts if the measures expire.

The provisions are contained within the Patriot Act, a law passed in the aftermath of the 9/11 attacks that vastly expanded the abilities of law enforcement officials to conduct surveillance of suspected terrorists both in the U.S. and abroad.

Over the years, the legislation has gradually been more tailored, with some of its provisions allowed to expire and others made permanent.

But some of the authorities granted by the law require Congress to renew them. There are three such provisions in the legislation.

One would enable law enforcement officials to conduct surveillance on suspected individuals who switch communication devices, such as using disposable cellular phones. A second would let officials conduct surveillance on so-called “lone wolf” individuals–suspects not currently linked to any known terrorist organization abroad. The third would enable officials access to suspects’ business transactions–rental cars, hotel bill and other credit card transactions.

All three have been extended until June 1, 2015.

Ultimately, 22 senators joined Paul in opposing the legislation. The majority of those no votes were cast by liberals who are opposed to the continuation of the expanded authorities contained within it. Several of them, led by Sen. Patrick Leahy (D., Vt.), the chairman of the Senate Judiciary Committee, had hoped to add language providing for further oversight and audits of the activities the law permits. This wasn’t allowed as part of the compromise reached Thursday, which sparked some of those no votes.

Leahy pledged to bring up the oversight language as stand-alone legislation soon.

Before they moved to a vote to finalize the legislation, lawmakers first had to deal with a Paul amendment that would have excluded gun sales from law enforcement officials’ ability to monitor business transactions.

Paul said this was a violation of individual rights protected by the second amendment to the U.S. constitution.

“It’s very important that we are eternally vigilant of the powers of government,” Paul said on the Senate floor. “I don’t think the government should be sifting through the records of gun owners.”

Even the National Rifle Association didn’t support Paul’s gun amendment. The organization didn’t oppose it outright, but chose to take no position on the issue.

The proposed change was easily defeated by the Senate

Late this afternoon (Thursday) the Senate Homeland Security and Governmental Affairs Committee conducted a hearing entitled Catastrophic Preparedness: How ready is FEMA for the next big disaster.  A video of the hearing is available. I don’t recommend taking time to watch it.

In a process and outcome emblematic of our overall stance on catastrophic preparedness,  several other issues and purposes were mixed into the hearing.   In a nearly two-hour session I perceived about 15 to 20 minutes were committed to what I recognize as catastrophic preparedness.

The situation in Japan was discussed, but mostly in terms of the nuclear emergency.  Senator Lieberman committed one seven-minute round of questions and answers to the implications for the US of  the Japanese experience of preparedness, response, and recovery beyond the nuclear emergency. I am not wanting to discount the potential harm and implications of the nuclear emergency. But it seems to me our (both Japanese and others) preoccupation with the nuclear emergency has discounted the urgent needs of those who survived the first two stages of this crisis.

Available at the hearing website is prepared testimony by each witness.  Below is a long quote from Administrator Fugate’s prepared testimony that does address important issues of catastrophic preparedness. It is worth reading each paragraph and beginning to insert your own footnotes related to the emerging lessons-learned from Japan.

–+–

We must view all of the work FEMA does in concert with the rest of the emergency management community as part of a broad plan for addressing the demands and challenges of a catastrophic disaster.

To ensure that our efforts become part of an interconnected plan of action, we are focused on our “Whole Community” initiative. This initiative will continue to leverage the capabilities that both governmental and non-governmental entities play in preparing for a catastrophic disaster.

We cannot effectively respond to a catastrophic disaster alone. Our planning and preparedness scenarios require all parties to pitch in, including FEMA and its partners at the federal level; state, local and tribal governments; non-governmental organizations in the non-profit, faith-based and private sector communities; and most importantly, diverse individuals, families, and communities, who continue to be our most important assets and allies in our ability to respond to and recover from a major disaster.

As the name of the initiative indicates, it is truly the whole community that must be prepared to respond in ways that extend beyond the normal paradigms in which we have traditionally operated. As a result, when we at FEMA address our own preparedness and response capabilities, we now do it through the “Whole Community” framework…

“Whole Community” uses planning assumptions for catastrophic disasters that are based on the worst case scenarios. These scenarios are designed to challenge preparedness at all levels of government and force innovative, non-traditional solutions as part of the response strategy to such events.

To begin this change in national preparedness practice and doctrine, we are enlisting the active participation of the whole community, partnering with emergency management, public health, security, law enforcement, critical infrastructure and medical organizations to plan, train, organize and heighten awareness as a team.

The “Whole Community” initiative identifies the highest priority tasks necessary to save and sustain lives and stabilize a community or region during the crucial first 72 hours after a catastrophe. This initiative also addresses the fundamental pillars of the entire emergency management spectrum. While the initial 72-hour period after an incident is the most critical in saving and sustaining lives, the Whole Community approach spans not only response operations following a disaster, but also recovery, prevention, protection, and mitigation activities that occur before, during and after a catastrophic event.

FEMA’s mission is to support our citizens and first responders to ensure we work together as a nation to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards. Too often we have overlooked our role as supporting citizens and first responders. The “Whole Community” initiative recognizes that FEMA is not the nation’s emergency management team – FEMA is just part of the team.

FEMA continues to play an integral role as part of the emergency management community. However, we know that we cannot and should not do it alone. We know of the capabilities of federal agencies, which can be leveraged in the event of a disaster to provide a robust federal response. We know of the importance of effective coordination with state, local and tribal governments, who provide direct, on the ground experience, and who usually have initial and primary responsibility for disaster response. We know that non-governmental organizations, like faith-based and non-profit groups, and private sector entities, possess knowledge, assets and services that government simply cannot provide. An effective disaster response involves tapping into all of these resources.

Finally, and most importantly, we know of the great capacity of individuals to care for their families, friends, neighbors and fellow community members, making our citizens force multipliers rather than liabilities. Together, we make up the whole community, and we all have an important role to play. We must engage all of our societal capacity, both within and beyond FEMA, to work together as a team.

I expect Chairman King well understands the stakes.  He is an experienced, wily, and — at times — even a wise man.

There is great value in the authentic question — no matter how awkward — because an authentic question is open to new understanding.

The method of Socrates had no script.  It was a high wire act. The wisest of all could still stumble over preconceived notions, private prejudices, and Plato’s own purposes imposed post-hoc.

An authentic question need not be innocent, but it does require a spacious susceptibility to honest answers and (especially) to being surprised.

Each of us who listened today will likely judge Chairman King, the committee’s other members, and each witness in light of our own intent, our own innocence, our own authenticity… or in the dimness and darkness thereof.

I have lost my taste for the politics of these events.  Many others are offering their thoughts on that (linked below).

See if you share my sense of hearing an interesting answer to the committee’s questions (and comments) in these words written seventy years ago:

Peter King defiant at tense Muslim hearing (Politico, news)

Witnesses at King hearing say US “failing” to confront radical Islam (FoxNews)

Islam show-trial opens in US Congress (Telegraph, news)

House hearing worries US Muslims (Al Jazerra, news)

Congressman defends panel on US Muslim community amid national uproar (Haaretz, news)

Republicans and Democrats disagree on Muslim hearings (Gallup, survey results)

Friday morning update:

The homegrown terror hearings (Wall Street Journal, opinion)

King: Next hearing is on Muslims in prison (AP, news)

Tears, fears at hearing on Muslims (The Hill, news)

Local Muslims slam hearings as unfair, unbalanced (Detroit Free Press, news)

Cries of McCarthyism over US Muslim hearing (Independent, news)

Spectre of McCarthy hangs over hearing into radicalization of American Muslims (The Australian, news)

Muslim hearings in US Congress dismissed as equivalent of reality TV (The Guardian, news)

That is how Peter King, Chairman of the House Committee on Homeland Security, characterized the threat of Islamic fundamentalist-connected terrorism to Ranking Minority Member Bennie Thompson in a letter.  The full quote:

While there have been extremist groups and random acts of political violence throughout our history, the al Qaeda attacks of 9/11 and the ongoing threat to our nation from Islamic jihad were uniquely diabolical and threatening to America’s security, both overseas and in our homeland.

King’s letter was a response to Thompson’s request to expand the subject of an upcoming hearing on radicalization within the Muslim-American community to a broader consideration of domestic extremism in general.  In defending his narrow focus, King goes on to compare the impacts of terrorism of different ideological stripes:

In short, the homeland has become a major front in the war with Islamic terrorism and it is our responsibility to fully examine this significant change in al Qaeda tactics and strategy. To include other groups such as neo-Nazis and extreme environmentalists in this hearing would be extraneous and diffuse its efficacy. It would also send the false message that our Committee believes there is any threat equivalency between these disparate groups and Islamist terrorism.

This seems a little short sighted to me as I think back to 1995:

It is just my opinion, but the bombing of the Alfred P. Murrah Federal Building in Oklahoma City seems pretty diabolical to me.  Homeland security should continue to be concerned about the present and evolving threat presented by Al Qaeda and like-minded groups.  However, too narrow of a focus will leave us vulnerable to a range of risks we choose to ignore or do not even notice exist.

I do not question the efficacy of hearings about radicalization in the U.S. Muslim community, but the reported tone of these hearings and the accusations that unidentified members of the law enforcement community have complained to King that they are not receiving cooperation from Muslim-Americans is troubling.  Los Angeles County Sheriff Lee Baca seems to share these concerns, as reported by Politico’s Ben Smith:

Los Angeles County sheriff Lee Baca said Monday that there is nothing to support Rep. Peter King’s (R-N.Y.) view that American Muslims are being uncooperative with law enforcement.

“If he has evidence of non-cooperation, he should bring it forward,” said Baca at a forum held today by Muslim-American groups in advance of King’s hearings on radicalization in the Muslim community. “We have as much cooperation as we are capable of acquiring through public trust relationships.”

“I sit on the Major City chiefs association as one of three chairs,” said Baca. “I also sit on the Major County Sheriff’s Association and I’m on the national board of directors of the international association for the sheriffs departments. Here’s the thing: I don’t know what Mr. King is hearing or who he’s hearing it from.”

Community engagement across the entire spectrum of homeland security-related activities is required to build resilience (however one defines the concept).  Alienating a specific group due to unfounded fears seems not a particularly forward thinking strategy.  In the process of carrying out important and necessary investigations, I hope that proper balance can be found for current and future issues.

[T]his is a situation where … people … really need to realize that the rhetoric and firing people up and, you know, even things, for example, we’re on Sarah Palin’s targeted list. But the thing is that the way that she has it depicted has the crosshairs of a gunsight over our district.

When people do that, they’ve gotta realize there’s consequences to that action.

When you look at these examples [from the left and the right] around the country which really try to incite people and inflame emotions…. You’re going to have … extremes on both sides…, and that’s where leaders have to come together and say….

—– Congresswoman Gabrielle Giffords, March 25, 2010

And after leaders “say” whatever it is they are going to say, then what?

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Update: Here’s one leader (Pima County Arizona Sheriff Clarence Dupnik) talking.  Some thought leading at about the 1:30 mark in the video:

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.

             Representative Harold “Hal” Rogers (R-Kentucky).  Picture by the Associated Press

Earlier this week the House Republican Steering Committee and House Republican Conference tapped Harold “Hal” Rogers as the next Chairman of the House Appropriations Committee.  Selection of the senior member of Kentucky’s House delegation was greeted by protests from Left and Right.

Mr. Rogers previously served as both chairman and ranking-member of the Homeland Security subcommittee of the House Appropriations Committee.  He also served on the transportation and defense appropriations subcommittees. (See his official biography.)

Elected in 1980 to represent one the nation’s most economically challenged congressional districts, Mr. Rogers has been effective directing federal funds to a wide array of local wants and needs.  As such he has been assailed by the Lexington Herald-Leader (KY), New York Times, and others as the “Prince of Pork.”  This accusation headlined most of the news coverage given his pending role as chairman of the Appropriations Committee.  Mr. Rogers has joined other GOP leaders in pledging no-new-earmarks.

Constituting less than .05 percent (half of one percent) of the federal budget I perceive outrage over earmarks to be one of those symptoms that complicate diagnosis and treatment of the underlying disease.  In this particular case the pork barrel critiques of Mr. Rogers also obscure his substantive legislative record and specific interest in homeland security.

Full disclosure: from 2005 through 2007 I was Chairman of the Board of a company with a facility in Mr. Rogers congressional district.  As such I often participated in local economic development activities and met with Mr. Rogers or his staff.  During several of these discussions, homeland security was a topic.  While we would not have turned down an earmark sponsored by Mr. Rogers, the company I served did not receive such support. 

From this experience I came away with three strong impressions:

1. Mr. Rogers is an accessible and intelligent man.  He has a particular interest in homeland security and especially in how science and technology can be a force-multiplier.  In my first encounter with the Congressman he quizzed me on homeland security like the former prosecutor he is.  He knows the issues. He understands the complications. He is sophisticated in his strategic approach to homeland security challenges.  He listens.  This personal impression was confirmed by watching him question witnesses in subcommittee hearings. 

2. Mr. Rogers is consistently bipartisan in his approach.  The old saw says there are three parties on Capitol Hill: Republicans, Democrats, and Appropriators. While Mr. Rogers is certainly conservative in most ways, appropriators tend to be pragmatic and less partisan.   This approach served him well in the Minority, it is likely to mark his return to the Majority and to leadership of the full Appropriations Committee.  Chairing Appropriations has been a long-time personal ambition.  On December 31 he will turn 73.  Mr. Rogers is not looking to squander this opportunity.  Leaving a meaningful legacy is one of the more constructive motivations.

3. Like all members of  Congress and most busy professionals,  Mr. Rogers is — at least in part – a creature of his staff and contacts.  Every staff member I met was smart, competent, and wildly over-worked.  Both on Capitol Hill and back in the District what I observed was a tendency for the most narrowly self-interested people to be the most assertive and effective communicators, proposers, and planners.  On several occasions I saw senior public servants choke and defer when Mr. Rogers or his staff were entirely prepared to listen to alternatives.  In retrospect I was one of a whole host of folks who should have — could have — pushed harder on key issues of homeland security.  My hesitation — our hesitation, or cynicism, or laziness, or disdain — just offers opportunity to others who are more willing and ready claim a Congressman’s attention.

Because homeland security — the mission, not the budget per se – is important to me, I will be glad to see Mr. Rogers become Chairman of the House Appropriations Committee.   He is more interested in and better able to meaningfully engage homeland security than any other serious candidate for the leadership role.  

As always in democracies — even those with republican constitutions — the quality of leadership will reflect and largely depend on the quality of those who choose to seriously engage the process.