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Will We Be Safe at Home?

A sprawling new security agency could end up threatening homeland liberty

by Randolph J. May
Legal Times, September 2, 2002

When Congress returns from its August recess, topping its agenda will be consideration of a new Department of Homeland Security. Indeed, some are pressing for final passage of legislation creating the mammoth new federal agency by Sept. 11. On balance, I believe we are just as likely to be able to protect ourselves, and more likely over the long haul to preserve our fundamental liberties, if we don’t create a massive new bureaucracy whose principal mission is as all-encompassing, amorphous, and alluring as “homeland security.”

Don’t get me wrong. I understand that the threat to our domestic security is real and long-term. There are terrorists and rogue states that want to strike at America—again. President George W. Bush had it right in his July 16 report “National Strategy for Homeland Security,” when he said, “The terrorist threat to America takes many forms, has many places to hide, and is often invisible.”

President Bush’s homeland security report identifies three strategic objectives, in order of priority: (1) preventing terrorist attacks within the United States; (2) reducing America’s vulnerability to terrorism; and (3) minimizing damage and recovery from any attacks that do occur.

Department Essentials

The essentials of the new agency that would be responsible for accomplishing these objectives are by now well-known. As proposed by the administration and already approved by the House of Representatives, the department would be created from the transfer of all or parts of 22 existing agencies. In its first year of operation, it would have approximately 170,000 employees, with a $38 billion budget. Among the existing agencies to be transferred to the new department are the Coast Guard, the Secret Service, the Customs Service, the Federal Emergency Management Agency, the Immigration and Naturalization Service, the Border Patrol, and the Transportation Security Administration. And various programs and activities presently residing in the departments of Justice, Defense, Commerce, Energy, Agriculture, Health and Human Services, and the General Services Administration would be transferred as well. Only the departments of Defense and Veteran Affairs would have more employees than the new department.

If we were writing on a relatively “blank slate,” it would be easier to envision a smaller Department of Homeland Security, with a generally coherent grouping of functions, in which the balance of liberty and security would be skewed differently. But, taking into account the costs and benefits of the department as proposed, that balance is likely to tilt too much in the liberty-threatening direction.

Another Big Bureaucracy

From a purely managerial perspective, a good argument can be made that the new department would just be too big and unwieldy to be effective, at least for a fairly long period of integration, and especially if Congress refuses to grant the president enough flexibility to reallocate budgets and to reassign people after the reorganization. It combines too many disparate functions, many of which have little or nothing to do with homeland security. For example, the Customs Service collects import duties in addition to inspecting suspicious packages; the Animal and Plant Health Inspection Service inspects animals already in homeland zoos as well as those being imported; the Federal Emergency Management Agency provides disaster relief for victims of tornadoes as well as biological attacks; and the Coast Guard rescues Sunday sailors as well as patrolling coastal waters for suspicious activities.

On the other hand, intelligence and law enforcement-type functions at the core of the homeland security mission that reside at the Federal Bureau of Investigation and at the Central Intelligence Agency would be unaffected by the reorganization. So, the new department would be missing key people and activities that arguably ought to be included from a governmentwide coordination perspective, while including a very large number of programs unrelated to the core mission.

In a July report from the Brookings Institution entitled “Assessing the Department of Homeland Security,” eight scholars asserted that “[t]he administration proposal merges too many different activities into a single department, including many that have little day-to-day connection with each other.” Recognizing the enormous managerial undertaking involved, the Brookings team concluded that the reorganization effort should be scaled back substantially by consolidating only in the areas of border and transportation security, infrastructure protection, intelligence analysis, and emergency preparedness and response. And they concluded, from the standpoint of what is practically doable, that not even all of those functions should be brought together in a new department in one fell swoop.

Therefore, even in terms of mission effectiveness, there are serious questions about the department as envisioned. But I am also concerned that creating such a huge new bureaucracy under one roof may disproportionately enhance the threat to civil liberties that necessarily inheres in any comprehensive internal security program. There is a gene embedded in every large bureaucracy’s DNA that impels it to seek to aggrandize its own power. It was in this vein that Thomas Jefferson reminded us, “The natural progress of things is for liberty to yield and for government to gain ground.”

As the new department seeks to maintain or expand its funding and personnel levels, there will be mission creep as it establishes additional programs to protect itself against the inevitable charges that it “didn’t do enough” in the event of further terrorist strikes. And, when it comes to security, that mission creep often invites a rollback of rights and liberties. We already have seen the government employ worrisome practices, such as the prolonged secret detention of suspects free from judicial involvement. And we have seen it propose questionable activities, such as Operation TIPS, a program under which couriers, meter readers, plumbers, and the like would be encouraged to report suspicious activities to the government. There are ways to encourage reporting of suspicious activities to law enforcement authorities, but without creating new federal programs.

Even absent creation of the new department, we need to remain vigilant that we do not sacrifice our civil liberties in the name of homeland protection. But with an agency on the scale envisioned, the appropriate balance will become more difficult to maintain. There likely will be ongoing competition between the new agency and the existing law enforcement and intelligence entities, such as the FBI, for expansion of domestic security authority through the addition of new functions. Ultimately, the same impulse that impels government officials to engage in secret detentions and TIPS-like surveillance programs will find a nurturing environment in a large, difficult-to-monitor bureaucracy with a domestic security mission. In his classic work, The English Constitution, Walter Bagehot, the British economist and social scientist, warned, “a bureaucracy is sure to think that its duty is to augment official power.”

Learned Hand, to my mind the most distinguished federal appellate judge never to make it to the Supreme Court, was a staunch anti-Communist who understood the Cold War menace posed by the Soviet Union. Nevertheless, he was troubled deeply by the excesses of McCarthyism. In a famous 1952 speech, Hand declared, “Risk for risk, for myself I had rather take the chance that some traitors will escape detection than spread abroad a spirit of general suspicion and distrust, which accepts rumor and gossip in place of undismayed and unintimidated inquiry. . . . Such fears as these are a solvent which can eat out the cement that binds the stones together; they may in the end subject us to a despotism as evil as any we dread.”

Balancing Liberty

In many ways, the threat we face today, with weapons of mass destruction in the hands of stateless terrorists and rogue states, is as great as any confronting us during earlier wars. And, in many ways, the risks to civil liberties in the defense of our homeland are the same of which Learned Hand spoke a half-century ago.

Having in mind the risks all around, we must go about the serious business of protecting our homeland in a way that also protects our traditional freedoms. The way to do that, assuming that some sort of government reorganization is needed, is to create a considerably smaller and more focused agency than the one that Congress is presently considering.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

© 2002 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • subscriptions@legaltimes.com • www.legaltimes.biz).



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