How to Fix DHS

Kristi Noem is out as secretary of the Department of Homeland Security; Markwayne Mullin appears to be on his way in. The switch is cosmetic: The problem with DHS isn’t Noem or Mullin or whoever else will run it. The problem is with the agency itself. Some aspects of the disarray are long-standing. FEMA’s capacity has been severely degraded. TSA seems to have its own internal chaos, terminating and then reinstating PreCheck within 48 hours. But more troubling is that, under Donald Trump, ICE and Border Patrol have become rogue agencies, accused of unnecessary violence and disregard for the rule of law. In January alone, ICE violated more court orders than most federal agencies violate in their entire existence, according to a federal judge in Minnesota. ICE has also adopted what appears to be a blatantly unconstitutional search policy. Meanwhile, more than 40 people have died in ICE custody since the start of Trump’s second term. The answer to such abuses is not reform; it is wholesale disassembly and restructuring. Read: How to actually reform ICE I was at DHS almost from the start. I served as the first deputy assistant secretary for policy under DHS Secretary Michael Chertoff and President George W. Bush, and was responsible for broad policy development for the entire panoply of the department’s activities: biothreats, aviation security, and much else. It gives me no pleasure to see how that work has been put to use. More than two decades ago, shortly after American soil was attacked for the first time since Pearl Harbor, the department was founded to prevent another such attack. Much of America’s response to 9/11 took place overseas, as the United States military went to war in Afghanistan. But part of the response happened at home. The government sought to protect the security of the homeland through a new strategic approach to protecting America: We hardened our borders and extended them outward, screening travelers and goods overseas, and created multiple layers of security wherever we could (for example, we combined more rigorous airport screening with locked cockpit doors and air marshals). At DHS, we also took advantage of having a “force multiplier effect”—a wealth of personnel and other resources across the agency that allowed us to quickly transfer employees in times of crisis. TSA officers could, for example, help FEMA during a hurricane. ICE agents could enhance law-enforcement capacity after a terrorist attack. The creation of DHS was the bureaucratic manifestation of this new strategy. The department consolidated much, though not all, of America’s anti-terrorism functions, including border and customs control, aviation security, emergency management, and, with the addition of the Coast Guard, ship inspections, search-and-rescue, and other maritime patrol work. All of these functions seemed to fit (to varying degrees) into the broader mission of keeping the homeland safe. But other components of DHS were less obvious fits. Immigration-status adjudication, by which asylum is granted or citizenship is awarded, came to DHS because of its connection to border and immigration issues. But who becomes a citizen through, say, marriage has almost nothing to do with foreign terrorism. Likewise, interior immigration enforcement, now housed within ICE, is mostly a matter of labor laws and indirectly deterring illegal immigration by making fewer jobs available to undocumented workers; it has little connection to national security. At the same time, still other federal capabilities, such as the FBI’s counterterrorism branch, that seemed highly salient to the DHS mission were left out—not because they didn’t fit but because of political considerations. This assemblage of functions mostly worked—or at least it seems to have, given that the U.S. has avoided another large-scale terrorist attack in the years since. But in retrospect, it is clear that certain aspects of this design have been flawed since the get-go. The Coast Guard, FEMA, and the Secret Service always had missions that were only partially related to DHS’s original mission of preventing foreign terrorism, and as a result, they were budgetary stepchildren. The aspects of their work that were directly terrorism-related were well-funded; other parts, not so much. But problems emerged as the department evolved to confront a mutating threat. In the early 2010s, a second wave of foreign terrorism emerged—attacks initiated by domestic actors who had been radicalized by foreign-terrorist propaganda while living in the United States. For example, Faisal Shahzad, a 30-year-old Pakistan-born resident of Bridgeport, Connecticut, who had become a U.S. citizen in April 2009, tried to explode a bomb in Times Square in 2010, allegedly after instruction by the Taliban. Tamerlan and Dzhokhar Tsarnaev planted two homemade pressure-cooker bombs near the finish line of the Boston Marathon in 2013. The brothers (American residents of Chechen heritage) had apparently been motivated by the wars in Afghanistan and Iraq, and one of them told investigators that he had learned how to build bombs from an online al-Qaeda magazine. DHS’s focus on international travel, funding, and communications left it less equipped to prevent terrorism that originated within America’s borders. Domestic actors arriving from abroad could not be detected, and many didn’t communicate with overseas terrorists directly. Interdicting this type of terrorist required a different approach. To respond, DHS had to focus its investigative and preventative efforts inside the United States. Instead of, for example, monitoring only foreign communications traffic and working to prevent known or suspected terrorists from entering the country, DHS had to look also at social-media posts that influenced Americans—and worry about domestic travel. That turn (which seemed entirely reasonable at the time) converted an organization whose principal focus was on foreign actors for the protection of domestic innocents into one that sought to identify malicious domestic actors, some of whom might be difficult to distinguish from domestic innocents. It began looking at Americans’ social-media data and conducting domestic intelligence gathering from human sources. Similarly, since even earlier—2008—ICE has been collating and analyzing huge quantities of data in support of its enforcement mission. From there, it was but a short step for an irresponsible president to set the department loose on Americans partaking in constitutionally protected activities. ICE now uses tools intended to fight domestic terrorism as a means of suppressing political opposition, deploying a high-tech arsenal of facial-recognition tools that are reportedly collecting information not only on undocumented immigrants but also on citizens engaged in protest. One final flaw also needs mentioning: the force-multiplier effect. When DHS was created, this was seen as one of the agency’s strengths. What we have learned is that the benefits of the flexible force are determined by the reasonableness of the presidential and secretarial control exercised in deploying that force. Today, the flexibility inherent in DHS’s creation has brought Border Patrol agents to the urban interior of the country—far from the rural areas for which they have been trained—where, unlike at the border, almost all of the people they encounter are U.S. citizens not in general legally subject to their enforcement authority. Here again, a reasonable initial premise has become untenable in practice.

The first phase of creating a new DHS, or whatever it would be called, would be to return its focus to the original objective—foreign counterterrorism—which remains a serious concern. Retain those portions of DHS that serve a counterterrorism function—CBP officers at ports of entry, TSA screeners at airports, Border Patrol agents at the nation’s land borders—and return the other components to more appropriate federal departments. Read: The first couple of a dysfunctional DHS Most of the rest of DHS should be disaggregated. Terrorist attacks on U.S. soil are so infrequent that FEMA can, and should, go back to being an independent agency. Likewise, immigration adjudication (currently housed in U.S. Citizenship and Immigration Services) can be returned to the Department of Justice. The home of the few agencies whose functions are decidedly mixed—such as the Coast Guard—should be decided on a case-by-case basis, but whatever the outcome, joint task forces that coordinate response activities should be developed. Most important of all: The disestablishment of DHS should be accompanied by reforms that eliminate the possibility of the creation of a federalized interior police force. Border Patrol can be limited to the border, and Homeland Security Investigations can be retargeted toward their traditional function of sophisticated transnational commercial crimes. Meanwhile, the single gravest militarized threat—ICE—should be reined in and restructured under new leadership, so that it focuses on its core mission of genuine civil-process interior enforcement. This disaggregation will not prevent the possibility of authoritarian abuse. Given a supine Congress and a reluctant Supreme Court, executive overreach will always be a risk. But this sort of fundamental restructuring would significantly reduce the likelihood of the abuses that Americans have witnessed in recent months—and go a long way toward restoring confidence in the mission of keeping America safe at home.