Reorganizing Homeland Security: DHS and Intelligence Reform

P ADM 401

SP15, Section 2

Prof. William Ryan

Reorganizing NationalSecurity:

DHS and Intelligence Reform

D. Dale Kelch, P.E.Topic Paper 2

March 22, 2015

D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015

ABSTRACT

This essay examines some of the organizational and operational

problems that the Department of Homeland Security and the nation’s

reorganized intelligence infrastructure have encountered and continue

to endure since the 9/11 attacks. Both the DHS and the reorganized

intelligence community suffer from a clear articulation of mission,

responsibilities and goals. Both suffer from internal “turf wars” as

agency and program directors compete for precedence in the areas of

budget and personnel. In addition the oversight of both entities is

heavily politicized, leading to Congressional decision-making errors

on national security that might have been avoided. As a

counterexample, this essay briefly discusses the establishment of the

Office of War Mobilization by President Roosevelt in the wake of the

Pearl Harbor attacks and the lesson it may have for future thinking

about national security.

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015

I. Introduction

The terrorist attacks on the United States of September 11, 2001

revealed some major gaps in the country’s intelligence apparatus. The

legal inability and unwillingness of the disparate intelligence

agencies to share information with each other resulted in no single

group of people having all of the pieces of the puzzle, which taken in

sum and synthesized might have discovered the plot and foiled it

before its execution. In response to the attacks and in hopes of

preventing further, future attacks, the Bush administration created

the Department of Homeland Security (DHS) in 2002. The new DHS was a

conglomeration of twenty-two distinct agencies that already existed

within the federal government, all of which had some responsibilities

that might be considered within the purview of “national security.”

Additionally, upon the recommendation of the 9/11 Commission Report in

2004, the administration created the position of The Director of

National Intelligence (DNI) with the passage of the Intelligence

Reform and Terrorism Prevention Act of 2004 (O’Connell, 2006, 1657).

The definition of “homeland security” has changed often since the

9/11 attacks. According to the Congressional Research Service, there

have been seven distinct definitions since 2007 alone. Some of the

definitions are succinct such as the 2011 National Strategy for

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015Counterterrorism which defines homeland security as “Defensive efforts

to counter terrorist threats.” Others are expansive and rather

nebulous, such as the 2010 Bottom-Up Review definition of “preventing

terrorism, responding to and recovering from natural disasters,

customs enforcement and collection of customs revenue, administration

of legal immigration service, safety and stewardship of the Nation’s

waterways and marine transportation systems, as well as other legacy

mission of the various components of DHS” (Reese, 2013, 8). However

none are decisive enough to provide a foundation for a clear

departmental mandate. In her 2009 testimony before the House Committee

on Homeland Security on DHS, Secretary Janet Napolitano said “it is

important that we develop an identity for DHS that is centered on the

Department’s mission and that we build a ‘one-DHS’ culture among the

different components of the Department” (Napolitano, 2009). This

statement suggests that as late as 2009, the DHS was still seeking a

direction and a clear mission statement. Without a clearly identified

mission it is difficult if not impossible to organize the government

apparatus to accomplish its goal. Similarly, the larger intelligence

community appears to have had difficulty in reorganizing itself to

face the new post 9/11 realities of increased information sharing and

the need for greater flexibility in defining the responsibilities of

the component parts.

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015

In this essay, I argue that the way in which National Security

apparatus of the country, including DHS and the larger intelligence

community, was reorganized is hampering its function and its

effectiveness. The first part of this essay explores the creation of

the DHS and subsequent attempts at its reorganization, while the

second part examines a similar reorganization of the larger

intelligence community undertaken in 2004. The final section offers a

counterexample of a similar structural reorganization that might serve

as a blueprint to inspire future reform efforts in the context of the

larger national security environment.

II. Organizational Failure at DHS

Since its inception, the DHS seems to have had problems clearly

articulating its system of authority and organizational structure.

The initial attempt to respond to the 9/11 attacks was Executive Order

13228 with which President Bush created the Office of Homeland

Security (OHS), with former Pennsylvania Governor Tom Ridge serving as

its director (Relyea, 2003, 610). The Executive Order charged the OHS

Director to “coordinate the executive branch’s efforts to combat

terrorism, work with executive departments and agencies and identify

priorities” (615). However, the Executive Order failed to give the

new OHS Director the explicit authority to compel other government

agencies to cooperate with it nor did it define a homeland security

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015concept (615). Further troubles ensued when Director Ridge refused to

cooperate with Congress by declining on numerous occasions to provide

testimony before oversight committees (616), losing the OHS

congressional support it sorely needed to function effectively given

its vague mandate.

When the time came to abandon OHS and establish a full Cabinet

department, the problems continued. The Bush administration elected to

have a small, secret committee which tasked its principal

participants, Director of the Office of Management and Budget Mitchell

Daniels, White House Chief of Staff Andrew Card, White House Counsel

Alberto Gonzalez and Director Ridge, to work on crafting the

legislative framework for the new department. The framework was

riddled with problems due in no small part to the fact that the

authors had never attempted to write such a massive piece of

legislation before and only one had headed an agency of any size or

scope. Because the framework was created in secret and with such

speed, the authors failed to take advantage of the varied expertise

that was surely available to them had they made the process more open.

In addition, they did not seek input from the subordinate agencies

that they intended to absorb in whole or in part (617). Finally, the

authors failed to solicit input from any state or local government

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015agencies, which would ultimately be responsible for being the first to

respond to any subsequent attacks (Eisinger, 2006, 538).

The most glaring error in the proposed framework was one that was

repeated from the creation of the OHS, namely, the lack of any clear

definition of what constitutes “homeland security.” Reylea notes that

“without a clear understanding of this (organizational) concept, there

was no standard for determining which existing agencies, programs and

functions merited transfer to the new department” (617). When

Director Ridge finally did appear before the Senate Committee on

Governmental Affairs, his testimony gave no guidance regarding the

future of the non-counterterrorism mission aspects of the agencies

about to be absorbed into the new DHS. There was no planning as to

who would take charge of those duties and many worried that those

lesser missions would suffer from “benign neglect” (618).

A final challenge in the creation of the DHS was the

administration’s clearly political desire to rewrite the personnel

rules regardingthe employees of the future department, specifically by

exempting DHS personnel from key Title 5 regulations regarding pay and

union participation. The stated reason for this request was to give

departmental managers flexibility in terms of labor relations and

compensation (Riccucci and Thompson, 2008, 879). The underlying

reason seemed to be a chance for President Bush, whose Republican

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015Party advocated running the government like a corporation, to

implement a new employment policy with the creation of a new agency

that would operate under this model. In the course of the 2002

electoral campaign, the administration was able to parlay this desire

into a strategy that gave voters the false choice of either supporting

homeland security by embracing the proposed rule changes or standing

by the (supposedly unworkable) status quo. At the conclusion of the

election, the Republicans gained control of both Houses of Congress

and those who fought against the proposed personnel changes

capitulated to the proposed rule changes. The new DHS was created with

the signing of the Homeland Security Act (HSA) as Public Law 107-296

on November 25, 2002 (ibid). The result of conflating national

security with a blatantly political motive was the immediate

politicization of the nascent department and a lack of trust for the

administration among its employees (880). Thus, from its inception,

the DHS was hampered by lack of agreement regarding basic foundational

definitions, lack of transparency and overt politicization of what

should have been internal personnel decisions.

III. Failure of Execution at the DHS

Once the DHS was up and running, it continued to have operational

problems. The aforementioned personnel changes continued to hamper

the agency, as the government employee unions sued to have the old

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015personnel regulations restored. The continued drain on time and

resources used to fight this lawsuit delayed the implementation of the

new rules. The proposed rules would have included vast expenditures

on management training to ensure that employees were being evaluated

fairly and properly. Meanwhile, support from Congress eroded and the

lawsuit was winning in the lower courts. Eventually, the DHS withdrew

its support for the new personnel rules and substituted a less

controversial Human Capital Operational Plan in 2007 (884), but the

delay and confusion had taken their toll on the agency’s human

resources and effectiveness.

Another operational challenge the DHS endured was the inability

to adequately and appropriately disburse funds to help bolster

security measures to end-users. The Office of State and Local

Domestic Preparedness (ODP) was one of the agencies transferred to the

DHS with passage of the HSA. ODP was charged under the USA PATRIOT

Act to administer block grants to non-federal governmental agencies to

assist in the preparation for and recovery from terrorists acts

(Eisinger 539). The two main vehicles for disbursing these funds were

the Urban Area Security Initiative (UASI) and the State Homeland

Security Grant Program (SHSGP). Both of these programs face built-in

structural flaws. SHSGP uses a basic, inflexible formula that assigns

monies based on an equal minimum as a baseline payment amount and only

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015then considers population, which results in a disproportionate

allocation of funds per capita to less populous regions which are

unlikely to ever suffer a foreign terrorist attack. The UASI attempts

to alleviate some of this disparity by taking into account population

density as well as assessing critical infrastructure that may be a

potential terrorist target. Even after the monies arrive to the

states and municipalities, there are restrictions on how it can be

used. The majority of the complaints received by the DHS concern the

fact that the end-user can’t spend the funds on what they themselves

have determined to be the highest priorities in their own

jurisdictions (540). The ODP has attempted to change the formulas

used to grant funds by taking other risk factors into account to more

accurately reflect the likelihood that an attack will occur in a

particular area, but Congress has refused to change the allocation

process (541). This once again shows that politics is unnecessarily

playing a role in critical DHS functions.

An additional problem within the DHS concerned the administration

of the Support Anti-Terrorism by Fostering Effective Technologies Act

of 2002 (SAFETY Act). The SAFETY Act was enacted to provide legal

protections from lawsuits to manufacturers of products that were

determined to be certified anti-terrorism technology. The agency took

more than four years to enact final rules and then enforced an onerous

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015process in order for these technologies to become certified even

though many of them were already on the market and “off-the-shelf”

ready for implementation. The fact that these technologies were

already on the market and seemed not to be having any litigation

issues questions the need for such an onerous approval process

especially since it was an opt-in program (Greenberger, 2007, 286).

An instructive example is the adoption of “see-through”

technologies that detect liquid explosives. Following a failed 1995

attempt to use liquid explosives to bomb a plane, Congress increased

the Federal Aviation Administration’s budget 11-fold, including

allowances for research and development. When the DHS was formed, it

systematically diverted this funding to other areas, which delayed

liquid explosive research. Only after another attempt was made to use

liquid explosives to bring down a plane in 2006 did the DHS start

looking into developing technology that could “see through” devices

and detect liquid explosives (283). There was bipartisan support for a

bill in 2007 to implement the recommendations of the 9/11 Commission

including the inspection of all aircraft and sea cargo. However, the

Bush administration and the DHS itself opposed this bill citing, the

lack of available appropriate see-through technologies even though it

was well known that the technology not only exists but is being

utilized in Hong Kong (282). Clearly an onerous approval mechanism

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015and overt politicization of the issues hampered and continues to

hamper the functioning of the DHS in the areas of technological

advancement and operational efficiency.

IV. Attempted Reorganization of the Intelligence Infrastructure

In addition to the creation of DHS, the attacks of 9/11 also

created an impetus within the government to implement a wide-ranging

series of intelligence infrastructure reforms. The 9/11 Commission,

which was created to investigate the attacks, concluded in 2004 that

their main cause lay in a widespread failure in the intelligence

community: failures in “imagination, policy, capabilities and

management.” As a result, the Commission recommended an extensive

reorganization of the nation’s intelligence apparatus, including the

unification of “the government’s counterterrorism intelligence

gathering and operation-planning efforts…under a National

Counterterrorism Center.” The Report also recommended the creation of

the new position of the National Intelligence Director (DNI), who

would coordinate the work of all the national intelligence centers, as

well as recommending the consolidation of Congressional oversight of

intelligence that would merge the various Congressional oversight

committees into a single joint House-Senate intelligence committee

(O’Connell, 1656). Clearly, the Commission’s proposal emphasized

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015unification and centralization of intelligence functions across all

branches of government.

As a result of the Commission’s recommendations, in 2004,

President Bush signed into law the Intelligence Reform Act, which made

some of the Commission Report’s recommended changes but not others.

While the Act created a new cabinet-level position, the DNI, who would

serve as the head of the Intelligence Community, it did not

meaningfully change the nature or structure of the Congressional

oversight of intelligence operations (O’Connell, 1666). As with the

DHS, almost immediately, the DNI found himself at odds with the

nation’s existing intelligence structures. Although “the Intelligence

Reform Act appears to transfer considerable budgetary and personnel

authority from the nation’s intelligence agencies to the DNI,” in

reality “it leaves some of the DNI’s powers vague” (O’Connell 1667).

For example, it was unclear to both observers and actors whether the

DNI had the discretion to set budgets for programs ostensibly under

his control including the National Intelligence Program, the Joint

Military Intelligence Program, and Tactical Intelligence and Related

Activities. It was also unclear whether the DNI had centralized

personnel authority in the intelligence community (for example, the

power to move personnel from one agency to another) or to recommend

appointments to the President for top intelligence posts. This

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015vagueness has caused a substantial amount of operational confusion as

well as creating a series of “turf wars” in the intelligence

community. For example, in 2005, it was noted that “the DNI has

repeatedly clashed with the Defense Department” over staff and

personnel transfers, and has experienced additional problems with

information sharing, insufficient coordination and unplanned

duplication (O’Connell, 1669). As in the creation of the DHS, the

implementation of the new intelligence system was hampered by a lack

of definitions and a clear understanding of operational jurisdiction.

It is not clear that to what extent this situation has been resolved.

A second problem concerned the lack of change in the nature of

congressional oversight of the intelligence community. As noted above,

though the Intelligence Reform Act created the position of the DNI, it

did not mandate, but only recommended congressional oversight reform.

In fact, in the years since 2004, “Congress has made little effort to

organize its overlapping committee oversight of the intelligence

community” (O’Connell, 1671). The reasons for this lack of action are

not difficult to fathom. Much like the directors of various competing

intelligence agencies and programs, Congress members were loath to

give up prestigious appointments on intelligence committees. In

addition, particular committees often developed “special

relationships” with the agencies they ostensibly oversaw, which was

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015not a situation either side was willing to abandon even for the sake

of improved efficiency and better national security (O’Connell, 1692,

1694). Thus, as in the DHS, political considerations often outweighed

pragmatic ones in the making of effective intelligence-related

decisions, despite the potential harm to the nation in the future.

Again, it is unclear whether this situation has or, in fact, can be

resolved.

V. Conclusion: A Counterexample

In contrast to the post-9/11 efforts to reorganize the national

security infrastructure described above, I would here to present an

example of another national security reorganization brought on by a

national crisis that might serve as a template for what can be

achieved through an effective reorganization process. After the entry

of the United States into World War II, President Roosevelt signed

Executive Order 9347 which established the Office of War Mobilization

(OWM) (Relyea, 613). The Executive Order gave the OWM Director the

mandate to “develop programs and establish policies to unify the

activities of federal departments and agencies and to resolve and

determine controversies between such agencies and departments and to

issue such directive on policy or operation to the federal agencies

and department as may be necessary to carry out the programs

developed, the policies established and the decisions made under the

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015executive order” (614). The major difference between the Executive

Order signed by Roosevelt and the one signed by Bush is the clear

language that definitively vests authority in the Director appointed

by the President to mediate turf wars that may develop as a result of

the establishment of this new Directorate. The Congress then was

concerned about the broad powers the OWM seemed to possess but instead

of acting to limit them, they created the Office of War Mobilization

and Reorganization (OWMR) with an eye to post-war operation. In fact,

some Congressional members at the time felt that the OWMR Director was

given powers second only to the President himself. The reason that

Congress was so willing to authorize this power was the clear

direction and confidence that President Roosevelt had repeatedly

communicated to Congress and the nation in his explanation of the need

for such an office (ibid). If President Bush had been willing to take

the political risk of standing fully behind the new DHS and the

intelligence reorganization, even at some cost to his popularity and

political capital, perhaps some of the difficulties that continue to

plague the new structures might have been minimized or avoided

altogether.

There are many opinions regarding the ultimate structure the DHS

and the new intelligence infrastructure should take. Some have

advocated for its elimination altogether (Kenny, 2013), while others

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015have called for the merger of the Homeland Security Council and the

National Security Council in order to create unity of effort in

establishing, creating and implementing national security strategy

(Wormuth and White 2009). Still others have called for the creation of

a DHS Technology Mobilization Board (DTMB) that would operate in the

guise of the OWM to streamline science and technology issues that fall

within the DHS purview (Greenberger 290). As recently as this month,

CIA Director John Brennan announced that the CIA will be reorganizing

to be “more successful against modern threats and crises” (Mazzetti,

2015).

Clearly there is room for improvement in the functioning of our

national security apparatus. Regardless of what a reorganized

national security infrastructure might look like, it is clear that

there are certain elements that must be in place in order to best

serve the country. As the example of the OWM demonstrated, there must

be clear definitions of mission, responsibilities and positions.

There must also be a clear line of authority and a means by which

disagreements in policy and precedence can be settled expeditiously.

In the absence of these requirements, the DHS and the intelligence

community at large will continue to spend precious time, energy and

resources trying to figure these elements out instead of doing the

work of the state in keeping us secure.

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015

REFERENCES

Eisinger, P. (2006). “Imperfect federalism: The Intergovernmental Partnership for Homeland Security.” Public Administration Review, 66(4), 537-545. Retrieved from http://www.jstor.org/stable/3843939

Greenberger, M. (2007). “Teaching New Dogs Old Tricks: Reshaping the Department of Homeland Security's Technology Development Infrastructure.” Jurimetrics, 47(3), 281-296. Retrieved from http://www.jstor.org/stable/29762974

Harmon, J. (2015). “Disrupting the Intelligence Community.” Foreign Affairs, 94(2), 99-107. Retrieved from http://www.foreignaffairs.com/articles/143042/jane-harman/disrupting-the-intelligence-community

Kenney, C. (2013, July 15). “The Case for Abolishing the DHS.” Bloomberg Business, Retrieved from http://www.bloomberg.com/bw/articles/2013-07-15/the-case-for-abolishing-the-dhs

Mazzetti, M. (2015, March 7). “C.I.A to Be Overhauled to Fight Modern Threats”. The New York Times. Retrieved from http://www.nytimes.com/2015/03/07/us/major-overhaul-set-for-cia-with-thousands-to-be-reassigned.html?_r=0

Napolitano, J. (2009, February 25). Testimony of Secretary Janet Napolitano before the House Committee on Homeland Security on DHS, ThePath Forward. website: http://www.dhs.gov/news/2009/02/25/secretary-napalitanos-testimony-dhs-path-forward

O'Connell, A. J. (2006). “The architecture of smart intelligence: Structuring and overseeing agencies in the post-9/11 world.” California Law Review, 94(6), 1655-1744. Retrieved from http://www.jstor.org/stable/20439079

Reese, S. (2013). Defining Homeland Security: Analysis and Congressional Considerations. Washington, D.C.: Congressional ResearchService. Retrieved from http://fas.org/sgp/crs/homesec/R42462.pdf

Relyea, H. C. (2003). “Organizing for Homeland Security.” Presidential Studies Quarterly,33(3), 602-624. Retrieved from http://www.jstor.org/stable/27552515

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D. Dale Kelch, P.E. Topic Paper 2 P ADM 401 Sect 2 SP15Professor William Ryan 22MAR2015Riccucci, N. M., & Thompson, F. J. (2008). “The New Public Management,Homeland Security, and the Politics of Civil Service Reform.” Public Administration Review, 68(5), 877-890. Retrieved from http://www.jstor.org/stable/25145675

Stockton, P., & Roberts, P. (2008). “Findings from the Forum on Homeland Security after the Bush Administration: Next Steps in Building Unity of Effort.” Homeland Security Affairs, IV(2), 1-11. Retrievedfrom https://www.hsaj.org/articles/121

Wormuth, C., & White, J. (2009). “Merging the HSC and NSC: Stronger together.” Homeland Security Affairs Journal, 5(1), 1-6. Retrieved from https://www.hsdl.org/?view&did=232050

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