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by Josh Filler: Homeland security issues including prevention and protection

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April 16, 2013

It happened. It is not the first terror attack in the homeland since 9/11 and it will likely not be the last. But like the 9/11 attacks, the bombings at the Boston marathon yesterday were caught on multiple television cameras at a high profile location providing a more devastating psychological blow to the nation than other post 9/11 attacks such as the one at Fort Hood which was not, but at which more Americans were actually killed.

We don’t yet know who carried out this latest attack or why. In that respect it may turn out not to be "terrorism" in the legal sense insofar as the bombing may not have been politically motivated. Such a distinction seems trivial when the practical impact of the attack so obviously causes terror. We will know soon enough. Whatever the cause, for those of us in the homeland security business, the attack in Boston is a terrible reminder of why we do what we do, and the unfair rules under which we all must operate. We have to be right all the time and our enemies have to be right only once.

Today, many urban areas around the United States are on a heightened state of alert at critical infrastructure and  major events. This is a wise decision since Boston officials have said they had no intelligence that there was a threat against the marathon. A 48 to 72 hour blanket of enhanced security around the country will allow intelligence and law enforcement agencies to turn up the system to try and determine if there are any threats that require immediate action. In the absence of such information, state and local authorities could begin to dial back their enhanced security posture.

Up until yesterday, the city of Boston had not been considered a level one threat city such as New York or Washington, DC by members of the intelligence community. That fact, coupled with the fact (for now) that there was no intelligence indicating an attack in Boston was imminent, should cause us all to pause before we say we know precisely where the threat is aimed. We don’t. While our planning must account for what we have learned from history, and what our intelligence capabilities can tell us of what is happening today, we must always plan for the known unknowns – those incidents that have a reasonable likelihood of occurring but for which we have no information indicating they will actually happen in the near future. 


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December 21, 2012

After September 11, 2001, a key element of the homeland security mission was to secure our nation’s critical infrastructure from terrorist attack. Our country’s schools are where we build our future by educating our children. What could be more critical than that? For decades our schools have been the target of armed assaults or “active shooters.” Yet, when it comes to school security, basic principles to counter this very specific type of attack are too often ignored in favor of methods which have proven to be completely inadequate. Today, many schools have school safety or security officers. The time has come to arm and train them to repel an active shooter. 

Modern mass school and campus shootings (those involving four or more dead victims) go back to the 1940’s when the principal of a Pasadena, California middle school shot and killed five school officials. The next mass shooting at a school occurred in 1966 when a man first killed his wife and mother before going to the University of Texas in Austin where he shot and killed 14 people. Other mass school shootings since the one in Austin include those in Arizona, Minnesota, Arkansas, Oregon, Illinois, Iowa, Colorado, Pennsylvania, Virginia, California and most recently in Connecticut. These do not account for school shootings where 3 or fewer victims died of which there have been over one hundred nationwide since 1980.

While mass school shootings have become a common and tragic fixture in modern America, mass shootings in general have been on a slight decline since the 1990’s. According to a study done by Mother Jones and other sources, from 1980 to 1989 there were 8 mass shootings in the United States, from 1990 to 1999 there were 23 mass shootings, and from 2000 to 2009 there were 21 mass shootings. However, there have already been 11 mass shootings in the United States just from 2010 to 2012. Among the 63 mass shootings from 1980 to 2012, 12 occurred at schools, 19 occurred in the workplace and 32 occurred at other sites.

While mass shootings of every type, and mass school shootings in particular, garner huge media attention, according to the Centers for Disease Control and Prevention (CDC), from 1992 to 2006 less than 1% of all homicides involving children ages 5-18 occurred at school. This data of course does not account for the number of planned school shooting attacks that have been thwarted over the years. According to National School Safety and Security Services there have been 120 thwarted attacks just between 2000 and 2010.

All of the various statistics show that from a risk perspective, for any one school among the roughly 139,000 public and private institutions in the U.S., active shooters are still a very low probability. But they are a potentially high consequence event as was seen in Connecticut last week where those consequences – 26 dead including 20 children at the Sandy Hook Elementary School – were absolutely devastating to the nation.  Even with the very low probability of an attack for an individual school, from a national perspective, the likelihood of more school shootings (both mass and non-mass) is relatively high, if we use the rate of attacks over the last forty years as an indicator. While past actions can’t guarantee future results, it’s a common tool to try and track future outcomes.

What contributes to the high consequence of school shootings, or what helps turn a shooting into a mass shooting, is the vulnerability of the schools to the active shooter scenario. It is this vulnerability of schools that further feeds into the likelihood of future attacks, since the attacker knows he will be able to inflict large casualties due to a school’s inability to immediately counter the assault through armed security. The only person armed is the killer. Victims must wait for armed law enforcement to arrive on the scene. However, law enforcement response time can vary widely from as low as several minutes to as much as 20 minutes to an hour. Often, it only takes seconds to a few minutes for shooters to inflict mass casualties.

Since the horrific shootings in Connecticut, passing more gun control laws restricting anyone from possessing certain types of “assault weapons” and ammunition is the “solution” that gets most of the attention. Unfortunately, this is probably the least effective response.  Indeed, to the extent bans on certain assault weapons and ammunition can truly help they should be explored, but concern over this proposal is less about gun rights, and more about what will actually be most effective in reducing gun related massacres and where our energy should be placed in finding solutions.

There are at least 300 state and federal gun laws on the books already (not counting local laws) and laws that prohibit drunk driving. However, such laws have not stopped mass shootings in the past and do not stop people from getting behind the wheel of a car drunk and causing an average of 13,000 deaths each year on America’s roads. Moreover, when the federal assault weapons ban was in effect from 1994 to 2004, its impact has been determined to be unknown due to insufficient evidence, to negligible at best, according to numerous studies including those from the CDC, the National Academy of Sciences and the National Institute of Justice. There were 15 mass shootings in the U.S. when the ban was in place, including the Columbine mass school shooting (another 2 occurred within 3 months of the ban’s expiration). Among those 15 mass shootings, at least 8 involved shooters with large capacity ammunition magazines.

Even in Europe where they have very strict gun laws they still suffer from massacres involving armed attackers (many of them at schools) as evidenced by those in Germany, Norway, Finland, England, Italy, the Netherlands, and France over the last ten plus years. Therefore, rather than emphasizing blanket prohibitions on certain types of guns, when it comes to school shootings in this country we need a more sophisticated and effective approach that focuses on the types of people who commit these horrible acts and the security at facilities at which they commit them. In too many cases, the shooters were mentally unstable males who attacked educational and other facilities that had no armed security.

After 9/11, we placed armed air marshals, armed pilots, and hardened cockpit doors on airplanes. We also imposed security measures at federal buildings, certain office buildings, stadiums and scores of other infrastructure. Today, walk into even the most mundane federal building and the first thing you will see is armed security. Not surprisingly, there have been far fewer shootings at federal buildings than there have been at schools in recent years despite the high profile nature of federal facilities. By comparison, for too many schools, a locked door, intercom, unarmed safety officer and cameras represent the highest level of security. If al-Qaeda terrorists were responsible for all the school shootings in the U.S. since the 1990’s, would security at schools be as it is today?

Arming and training school safety offers to repel an active shooter will not turn schools into “fortresses” that will disturb the academic serenity of the institutions. The White House is a fortress and a few armed guards are simply no comparison to the security apparatus at that compound. The weapons used at schools (particularly elementary schools) could be concealed similar to how Secret Service agents and law enforcement carry guns to protect the president, governors, and mayors from around the country. Today, approximately, 23,200 schools, roughly one-third of all public schools, currently have armed security. Just recently, the Butler and South Butler County school districts outside Pittsburgh announced they would arm and train their school security officers. This is the right decision because history shows it works.

In June 2009 an armed gunman walked into the Holocaust Memorial Museum in Washington, DC and opened fire. Armed security guards shot and wounded the gunman before he could engage in his planned massacre. Then Mayor Adrian Fenty said the security officers' efforts to “bring this gunman down so quickly literally saved the lives of countless people.” In December 2007 a gunman attacked worshippers at the New Life mega church in Colorado Springs killing one person and wounding 4 others before being killed by an armed security staff member. Then police chief Richard Myers said the church’s security personnel "probably saved many lives."

There are several other situations including at the Capitol building itself in Washington, DC. There, in 1998, it was armed security that likely saved numerous lives when a man with a gun attacked a Capitol building entrance for members of Congress. The attacker was shot by Capitol Hill Police before he could kill or wound any congressional member. Finally, while not a security officer, there is the case of assistant principal Joel Myrick. In 1997, Myrick, an army reservist, used his gun in his car to help prevent a shooting rampage that killed 2 and wounded 7 at a Mississippi high school from becoming a mass shooting by forcing the teen shooter to surrender at gun point. There are other examples of off-duty law enforcement and military personnel using their guns to prevent a shooting rampage from turning into a mass shooting, including at restaurants, businesses and schools.

While armed and trained security can protect against and mitigate the damage from an active shooter, it cannot stop the shooters from acquiring weapons and attacking a secure school or softer targets. When it comes to preventing active shooter attacks, the emphasis must be on stopping those who are mentally unstable from gaining access to weapons under any circumstances – at a store, gun-show or at home. An effective solution will require greater coordination between law enforcement, the mental health community, gun owners and dealers, and the general public.

Prevention must focus on spotting those with severe mental illness and sharing that information in a way that prevents access to guns, encourages, or in some cases forces treatment, all while preserving as much privacy as possible. This will not be easy and will likely pit privacy advocates against law enforcement, against gun owners, etc. However, we need a serious examination of how to make this work including a change in how we view, treat and discuss mental health, which may help reduce the stigma driving some of the privacy concerns in the first place. 

While armed security and better policies concerning the mentally unstable will decrease the risk of an active shooter attack at a school, or elsewhere, neither step is a panacea. There is no such thing as complete security and risk can never be reduced to zero. Nonetheless, each step would be a huge improvement over where we are today when it comes to guns, the mentally ill, and school safety.

The decision of whether to arm school security officers is largely a state and local one. When considering this question, local and state leaders should remember that arming these officers is insurance, which by definition is to protect against low probability high consequence events, such as a major medical procedure or a home burning to the ground. Finally, while the active shooter attack at a school is very rare, if God forbid an armed gunman showed up at a school tomorrow, is it preferable that the school security officer(s) be armed and trained to counter the attack or that the officer(s) be armed only with a cell phone to call others with guns to come and rescue the children and staff? It’s a horrible question to ponder, but that’s what’s at stake, because these attacks will happen again, and we have seen the unspeakable outcome too many times not to take effective action.


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March 12, 2012

Recently, DHS, through FEMA, released the National Preparedness Grant Program (NPGP) Vision Document as part of its plan to overhaul federal preparedness grants beginning in FY 2013. While FEMA deserves credit for recognizing that changes are needed to the current suite of homeland security grant programs, the NPGP as it is currently envisioned raises serious questions. The following summarizes a few of the key issues facing the proposed NPGP and offers some suggestions for strengthening the proposal.

Streamlining the Grants

In FY 2011, there were 13 independently funded State and local homeland security grant programs (not including Emergency Management Performance Grants and the Assistance to Firefighters Grant). These 13 programs should be consolidated. Among these programs only two were and remain enterprise wide programs that cover all aspects of homeland security within the framework of Presidential Policy Directive No. 8 (National Preparedness) consisting of prevention, protection, mitigation, response and recovery – the Urban Areas Security Initiative (UASI) and the State Homeland Security program (SHSP). All of the other programs are niche programs that essentially cover a critical infrastructure sector, response discipline, hazard type, etc. By consolidating the grants under these two programs, which would make up the NPGP, the NPGP will better integrate the activities of the critical infrastructure sectors, and public health and safety personnel in the States and Urban Areas. 

Building National Capacity

The UASI and SHSP have been effective over the years in strengthening national preparedness. FEMA recognized this fact in its NPGP Vision Document where it states:

Over the past nearly 10 years, we have seen how federal investments in state, territory, tribal and local preparedness capabilities have developed significant national capacity to prevent, protect against, respond to and recover from all kinds of disasters and threats (emphasis added).

Thus, these two programs are already achieving one of the stated goals of the NPGP, to “build a robust national preparedness capacity based on cross-jurisdictional and readily deployable state and local assets.” A text book example of this occurred in 2011 where UASI funded cross jurisdictional equipment and training played a critical role in life saving search and rescue operations following the tornado in Joplin, MO.

The NPGP’s emphasis on building “nationally deployable” capabilities versus those that are not (with some exceptions) creates some confusion, insofar as no definition for what constitutes a nationally deployable asset has ever been provided, and tries to fix a problem that does not exist as evidenced by the Joplin response.  The NPGP approach may lead to the creation of certain assets that do not have a day-to-day role to play as these assets will sit in a “glass case” to be broken only during a “national emergency” that may or may not occur. The current approach of building capabilities and assets that are scalable - ones that can be used for local threats and incidents and can be deployed for regional and national threats and incidents – is the better and more cost effective method.  This approach was strengthened already by FEMA in the FY 2012 grant requirements with the mandate that every State be a member of the Emergency Management Assistance Compact (EMAC), a mutual aid system among the States, in order to be eligible for grant funds.

Preparedness Grant Governance

Grants designed to build regional, statewide and national capacity must have a governance model attached to them to be truly effective. Otherwise, grants simply become checks funding one-off projects not tied to assessments, strategies and implementation plans. Unfortunately, the NPGP proposal moves away from the current strategic governance based approach to a competitive and individual project based approach. In fact, the current SHSP and UASI required regional governance structure and regional strategy would no longer be required under the NPGP as it stands.

It is this regional governance structure that has done more to enhance and build regional and national capacity than perhaps anything else since 9/11.  It is this structure that has set the foundation for local jurisdictions across the country to act regionally as opposed to each individual jurisdiction and agency planning and acting on its own. This regional collaboration and partnership approach must be strengthened and supported by FEMA, not dropped in place of a yet to be defined competitive grant program that will likely favor those who have the best grant writers as opposed to projects that best enhance regional and national preparedness.

A purely competitive program will likely pit cities, counties, and states against each other when they should be focused on working together to invest where the risk is greatest and the investments are most effective as many are doing under the current UASI governance structure in particular.  For example, under the NPGP will Kansas City, Missouri have to compete with Johnson County, Kansas even though both are in the same Urban Area under the UASI program today? We are already seeing such an outcome in the FY 2012 Port Security Grant Program (PSGP), which has moved away from area wide security and planning among ports in a region to a purely competitive program allowing single facilities in the same port, let alone region, compete with each other for funding.

Rather than doing away with effective governance models that have been developed and calibrated over the last decade, upon consolidation of the programs under UASI and SHSP, FEMA should develop requirements for better integration of and within the States, Urban Areas and FEMA regions concerning the governance and planning process. For example, the Transit Security Grant Program (TSGP) and PSGP should be rolled-up under the UASI program (as was done under the FY 2003 Supplemental Appropriation) with the Regional Transit Security Working Group (RTSWG) and the Area Maritime Security Committee serving as required subcommittees under applicable UASI Urban Area Working Groups.

The ports and transit agencies in and around major Urban Areas are key factors in determining where risk is highest across Urban Areas in the first place. Therefore, better integration among these critical infrastructure sectors and the Urban Areas of which they are a part should be a priority. To ensure their equities are protected, as is the case currently with the intelligence fusion centers in the States and Urban Areas under SHSP and UASI, investments in port and transit security from each State and/or Urban Area should be required based upon risk and effectiveness.

Finally, the consolidated grants should better outline the roles of FEMA and the States in the governance and planning process. This should include a requirement that FEMA regions and the States participate and sit on key committees in the Urban Area to continuously assist in assessments, planning and investing based on an agreed upon risk and capabilities based strategy and implementation plan. This is already occurring to some extent under the TSGP, which requires that TSA and the State participate in and co-chair the RTSWG respectively.

Assessments and Plans

While the NPGP’s emphasis on the threat and hazard identification and risk assessment (THIRA) is a positive step insofar as each State (and Urban Area) should be required to conduct a THIRA, developing projects based on a THIRA alone is not enough. Understanding risk outside the context of understanding capabilities needed to mitigate that risk presents an incomplete picture (the NPGP is vague on the role capabilities assessments should play). Moreover, it is the combination of the two data sets (risk and capability levels) that should then lead to developing strategies and implementation plans formed under a regional collaborative governance structure that has and will produce the best results – regional projects to sustain critical capability levels along with projects to close critical capability gaps.  A THIRA is no more a homeland security plan than a hazard identification and risk assessment (HIRA) is a hazard mitigation plan. In both cases the THIRA and HIRA inform each relevant plan.

Today, many States and Urban Areas across the country are engaged in continuous and sophisticated risk and capabilities assessments that drive strategic planning and investing. FEMA has not yet released the THIRA guidance, but hopefully States and Urban Areas will be given an opportunity to comment on it prior to its becoming final since so much work has already gone into risk assessments at the State and Urban Area level.  Finally, the Department of Homeland Security has not issued guidance on updating State and Urban Area homeland security strategies since 2005. With the new National Preparedness Goal in place, now is the time to develop such guidance in collaboration with States and Urban Areas. 

Management and Administration

In doing away with the all the current grant programs and their related governance and administration structures, the NPGP provides no alternative framework other than to have the States manage the process. While greater coordination and collaboration among Urban Areas and States (and FEMA regions) can and should occur through a UASI and SHSP based NPGP, the States’ ability to effectively manage such a massive and yet to be defined budget process as outlined by the current NPGP is dubious at best. States have undergone large cut backs over the last several years and simply don’t have the resources to manage this new responsibility effectively. Rather than imposing all the responsibility on the States, maintaining the UASI structure in particular will alleviate much of this burden and allow administration responsibilities to continue to be shared at the Urban Area and State levels through a modified and improved grant governance, planning and administration structure.

The Role of Risk

The NPGP Vision Document states that the program will be “risk informed” when it comes to allocating funding among the States, but is unclear as to what that will mean in actual practice. The NPGP does not specify if risk will be limited to terrorism risk or if an all hazards risk assessment will be used or possibly even both methods. The NPGP notes that, “priorities will vary by region according to the risks and hazards therein (i.e. hurricane risk for Gulf and East Coast states, terrorism for large urban areas, flooding in the Mid- West and earthquakes and wildfires on the West Coast).”

SHSP and UASI are currently allocated based upon terrorism risk with the understanding that capabilities developed through either program may be dual use – designed primarily for terrorism but applicable to other hazards as well. This approach strikes the appropriate balance and reflects many years-worth of negotiations and compromise. A potential move to an all hazards risk assessment by FEMA in determining how to allocate funds will have an impact on how funds are distributed with the most likely outcome being funds moving away from jurisdictions that face a high risk from terrorism to those jurisdictions that face a high risk from natural hazards such as hurricanes. 

Performance Metrics and Measures

Congress and the American people have a right to demand that FEMA, States and Urban Areas measure the effectiveness of the homeland security grant programs. Several national and Urban Area level reports on UASI and SHSP have been issued over the last year to begin this process. Such measuring and reporting must continue based on the Core Capabilities in the National Preparedness Goal through a partnership between FEMA, the States and Urban Areas. FEMA has made progress in this area in both the FY 2011 and FY 2012 grant guidance by outlining specific priorities and associated metrics and reporting requirements. A core element for building upon this is to ensure that State and Urban Area homeland security strategies are aligned with the National Preparedness Goal and for FEMA to better use the strategies and implementation plans to monitor investments after funding is awarded.

The FEMA required investment justifications, which outline how grantees intend to spend their grant funds, must be tied directly to those strategies and implementation plans and FEMA should ensure that actual spending, with some room for modifications, takes place as outlined in the investment justifications. Investment justifications should be designed and viewed as the culmination of a planning process in which THIRAs and capabilities assessment have occurred, which then help drive strategies and implementation plans with the investment justifications serving as the final phase of implementation for a particular fiscal year. 

The investment justification process should be a collaborative one involving DHS, the FEMA regions, the States and Urban Areas. Such investments should then be peer reviewed, not as part of a competitive grant program, but rather, to determine if the investments adequately tie to the implementation plans upon which they must be based.  Reporting to DHS by States and Urban Areas should occur through a modified and enhanced (Bi-annual Strategy Implementation Report), the tool currently used for reporting, but which seems to have no place in the proposed NPGP.

Summary

FY 2013 presents an opportunity to better streamline and integrate the multiple homeland security grants by using the SHSP and UASI as anchors for doing so. Changes to the current construct must be based on preserving and strengthening that which is working and refining or discarding that which is not. Under such an approach, the NPGP can become an effective instrument of national policy designed to implement the National Preparedness Goal in order to strengthen homeland security.


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December 20, 2011

Congress has now passed the final Department of Homeland Security (DHS) FY 2012 budget and it isn’t pretty for state and local homeland security grant programs. Congress appeared to split the difference by adopting the House’s method of turning multiple homeland security programs into a single block to be allocated by the Secretary, while providing more funding as per the Senate to this overall process.

In total, the budget provides $2,374,681,000 for all state and local grants of which $350 million will go for Emergency Management Performance Grants (EMPG) and $675 million for the Assistance to Firefighters Grant (AFG). Both the EMPG and AFG are funded in separate budget accounts from the state and local homeland security grants, which are funded at $1,349,681,000. This includes $50 million for the border security grant Operation Stonegarden, no less than $100 million for “areas at the highest threat of terrorist attack” and 6.8% or $9,177,830 for FEMA management and administration leaving $958,822,170 for the rest.

The remaining $958,822,170 is funded as a block to cover the Urban Areas Security Initiative, (UASI), State Homeland Security Program (SHSP), Transit Security Grant program (TSGP), Port Security Grant program (PSGP), Metropolitan Medical Response System (MMRS), Citizen Corps program (CCP), etc. at the discretion of the Secretary. More on that below.

Why the Cuts?

The $1,108,822,170 in FY 2012 funding for Stonegarden, high threat areas and all the other homeland security grant programs represents a massive $846,177,830 cut from equivalent programs in FY 2011, which also saw major reductions compared to FY 2010. The basis for these cuts in the eyes of Congress is simple: A lack of quantifiable metrics that measure the additional capability produced by the grants and the perceived slow drawdown of grant funds by recipients. While both issues are surmountable, the federal, state and local homeland security community that benefits from these programs is getting low on time to do so. 

Threat versus Risk

Given the funding methodology used by Congress, grant recipients do not have a specific funding amount at this time except for the $50 million for Operation Stonegarden and the no less than $100 million for “areas at the highest threat of a terrorist attack.” While it is reasonable to assume this $100 million may serve as a baseline for the UASI program that is not assured given the ambiguity in the statutory language, which does not specify the UASI program for this funding.

The ambiguity is further complicated in the law’s exclusive use of the word “threat” as opposed to “risk” or the three elements of risk – threat, vulnerability and consequence. In this regard, the law seems to be at odds with itself whereby in the opening sentence of the state and local programs section it reads that grants “shall be distributed according to threat, vulnerability and consequence,” i.e., risk, but later reads that the $100 million carve out will be distributed based on “threat.” Is this simply a typo or something else? Why does this matter?

Threat is an element of risk but not the whole picture and it is risk that is used to allocate UASI funding. When accounting for threat in these matters, it is based largely on intelligence and actual plots aimed at specific cities or other targets and looks very closely at the likelihood of an attack accounting for both the intent and capability of the terrorists. A threat based analysis would not include the vulnerability of the specific target and other potential targets or the consequences of a successful attack against the target or other potential targets, which, if very low on both counts, would drive the overall risk score down. This is especially true since in year’s past under DHS’s risk based allocation formula, vulnerability and consequence have accounted for 70% of the grant allocation formula with threat accounting for 30%.

Regardless of how DHS interprets the meaning of “threat”, in the end, the Secretary could append the $100 million “threat” funding to any UASI allocation resulting in a slightly different allocation formula for the $100 million, but with it operating under the same grant guidance as the UASI’s “risk” based funding. The result is a distinction as to how funding is allocated to urban areas on the front end by DHS with no difference on how the funding is used by the urban areas on the back end.

Does Every Program Get Funded?

The short answer is probably not, but it is far from clear. The FY 2012 budget law opens with the following language on state and local homeland security grant programs:

“For grants, contracts, cooperative agreements and other activities, $1,349,681,000, which shall be distributed, according to threat, vulnerability and consequence, at the discretion of the Secretary based on the following authorities:”

The law goes on to list 12 different grant programs and their authorizing statutes relative to the term “authorities.” The answer to the question of whether each of the 12 programs listed must be funded turns on a few key issues - whether the “based on the following authorities” language is a requirement that every listed program be funded or whether it simply means once the Secretary makes up her mind on whether to fund a program she must do so pursuant to that program’s authorizing language. In addition, and related, whether the Secretary’s discretion under the law applies only to the use of risk data in distributing the funds among and within programs or whether it also applies to determining which programs actually get funded in the first place.

On both counts the law is vague and the Conference Report is silent.  However, it would seem clear that programs not listed among the 12, such as the Regional Catastrophic Preparedness Grant Program (RCPGP) cannot be funded in FY 2012 since there is no authority in the law for the Secretary to allocate funding to that program. 

Given the ambiguous nature of the language, the Secretary could probably go either way in her decision, but the broad interpretation of her discretion would be the more practical one. In fact, several of the 12 programs listed were not funded by Congress in FY 2011 (BZPP and IECGP) and it would seem odd to now require their funding at some minimum level in a year where overall funding has been further drastically cut.

Moreover, linking the words “shall be distributed” with “based on the following authorities” into a requirement for funding of all listed programs would undercut the Secretary’s discretion in allocating funding and stretch the meaning of the words when in fact Congress could have easily inserted language that required the Secretary to fund each listed program based on a risk analysis. Congress did not do that. Instead, it gave the Secretary discretion to be informed by risk, and when implemented, to be governed by the laws covering the execution of the programs that do get funded.  Specifically, the opening language first requires that the funding be distributed among grant recipients according to risk, but then caveats that requirement by granting the Secretary discretion over which programs may be funded, but then requires that if they are funded, the programs must be funded based upon the authorizing language in the law (“authorities) relative to that program.

This last point raises an interesting question relative to the SHSP program regardless of which interpretation is used. The SHSP is authorized pursuant to 6 U.S.C. 605 in which the statute has language referring to all states being eligible to apply for funding and a minimum level of funding for each state. Thus, if the Secretary opens the door and provides any funding under SHSP, will the Secretary have to apply a minimum level of funding to each state as a percentage of the total amount she decides to allocate to the SHSP program as required by 6 U.S.C. 605? The answer appears to be “yes” since the authority to allocate SHSP funding comes with that requirement.

What is clear is that even if every program listed must be funded, the Secretary has the discretion over how much to fund each program even if that discretion is augmented by a required risk analysis. Otherwise, Congress would have simply allocated funding per program itself. Therefore, in theory, the Secretary could fund any one program at $1 or $500 million so long as there was enough money to meet each program’s requirements, and the risk analysis was used to support the outcome.

There are likely many other brain twisters lurking in the law as Congress has fundamentally changed these programs and cut overall funding at the same time and left the tough decisions concerning what it means and how to implement it to the Secretary of Homeland Security.


 


4 comments
September 10, 2011

What can be said about the 9/11 anniversary that hasn’t already been spoken? It seems every television channel imaginable has a 9/11 special or series leading up to the 10-year anniversary of the worst terrorist attack in recorded history. From the perspective of one who witnessed the attacks first hand and helped build
the homeland security infrastructure of today, much has changed since that day and yet much remains the same.

Continue Reading

 


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September 10, 2011

What can be said about the 9/11 anniversary that hasn’t already been spoken? It seems every television channel imaginable has a 9/11 special or series leading up to the 10-year anniversary of the worst terrorist attack in recorded history. From the perspective of one who witnessed the attacks first hand and helped build the homeland security infrastructure of today, much has changed since that day and yet much remains the same.

Continue Reading


Leave a comment
September 07, 2011

Sometimes one hopes to be wrong. Unfortunately, when it comes to the FY 2012 homeland security budget, the Senate Appropriations Subcommittee on Homeland Security has proven me right insofar as the FY 2011 budget was the just beginning for cuts to state and local homeland security programs. While the Senate bill is an improvement over the House bill when it comes to state and local homeland security grants, that’s barely a compliment and more the equivalent to being named the world’s tallest Hobbit. You’re still very short.

The Senate bill provides $2.58 billion for state and local grants, $557 million above the FY 2012 House level and $525 million below the final FY 2011 budget. However, the 2012 Senate amount will actually be even less as it does not account for management and administration funding that FEMA will take off the top of this appropriation to pay FEMA staff and run the programs. For example, in FY 2011, the Urban Area Security Initiative (UASI) program was appropriated $706 million but only $663 million was actually awarded by FEMA to urban areas, which amounted to an additional 6% cut in available funding. The bill wisely rejects the House proposal to eliminate the Urban Area Security Initiative, Transit Security Grants and other programs and replace them with a block grant.

The Bill Summary

The State Homeland Security Grant Program receives $380 million. This is a $146 million cut from FY 2011.

Operation Stonegarden receives $50 million. This is a $5 million cut.

The Urban Area Security Initiative receives $400 million. This is a $306 million or 43% cut from FY 2011, and if approved by the full Congress would result in UASI being cut by more than 50% in two years, down from $887 million in FY 2010.

The Emergency Operations Center grant is funded at $15 million (no cut).

The Port Security Grant Program receives $200 million. This is a $50 million cut from FY 2011.

Transit Security Grant Program receives $200 million. This is a $50 million cut from FY 2011.

The bill provides $750 million for fire equipment and firefighter hiring. This is a $60 million cut from FY 2011.

Finally, the bill provides $350 million for Emergency Management Performance Grants, $11 million above the FY 2011 level.

No specific funding is provided for Citizens Corps, Driver’s License Security, Buffer Zone Protection Program, Metropolitan Medical Response System and Interoperable Emergency Communications grants. Activities previously funded under these programs are eligible in the funded programs.

While not a surety, the bill’s funding of UASI at $400 million sets the stage for all 20 tier II urban areas to be dropped from the UASI program in 2012. This will depend on whether DHS uses the same blunt force trauma approach to allocate funding in 2012 as it did in 2011. Recall in 2011, when UASI suffered an 18% cut, DHS cut the program’s  membership in half by removing 32 urban areas from it so as to hold harmless all 11 tier I urban areas in funding.

While it is mathematically impossible for all tier I urban areas to be spared cuts in 2012, to just minimize the cuts to those tier I urban areas DHS will have to take all tier II funding, which was $122 million or 18.6% of funding in 2011, and give that money to all 11 tier I urban areas. The bottom line is every urban area from New York to Charlotte is likely to see cuts or outright termination of funding in FY 2012 if these budget numbers remain unchanged.

What Happens Next?

What the Senate subcommittee did yesterday is not the final word. In fact, the funding numbers the subcommittee released could actually be the high water mark in state and local homeland security funding because the Senate must reconcile its budget with the House and the House was lower in grant funding by $557 million. Yes, things can get worse for these programs in the absence of aggressive outreach and education to members of Congress on what these cuts will do state and local homeland security preparedness. 

In the meantime, the full Senate Appropriations Committee must take up the bill and then the Senate as a whole before it goes into conference or some alternative before final passage. That leaves some, albeit little time to reverse this action. In the absence of a reversal, expect 2013 to be the last year many of these programs exist. For in FY 2012, five programs have already been slated for termination by both the House and Senate.


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June 20, 2011

With fights over Medicare and Social Security getting most of the attention, both Congress and the White House have agreed to massive cuts in state and homeland security grants. However, this will likely not save money in the long run and will undermine security in the immediate future. Here's why.


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May 02, 2011

The death of Usama bin Laden (UBL) is welcome news indeed. It proves that no matter how long it takes, no matter how difficult the task or how cantankerous our domestic politics may be, when it comes to America's mortal enemies, the United States will eventually exact justice. In the case of UBL, it was more of a reckoning.

With Friends Like These...

The painstaking work conducted by the CIA, the U.S. military and other members of the Intelligence Community of piecing together bits of information to present a clear intelligence picture on UBL's whereabouts and then carry out the operation to end him deserves much credit. However, it was UBL's whereabouts in Pakistan that leaves America with some uncomfortable questions it must ask.

For starters, how long was UBL at this compound in Abbottabad, a town with a major Pakistani army presence roughly 40 miles north of Islamabad? How is it possible the Pakistani government, particularly its intelligence arm, the Inter-Services Intelligence agency, (ISI) did not know he was there? The Pakistanis have long played both sides when it comes to America and our war with the Taliban and al-Qaeda.

All reports are that the U.S. did not tell the ISI about this mission beforehand, which, if true, speaks volumes to what we really think of them on such sensitive matters. It’s possible the Pakistanis were aware of and supported the operation, but for domestic political reasons don’t want to be associated with the mission for fear of rousing the Islamic radicals in their own country. Only time will tell, but hopefully this operation will push Pakistan further towards supporting American interests in the region and away from its longstanding duplicity when it comes to the U.S. and the Taliban and its more recent overtures toward China.

Risk to the Homeland

Some may hope that our killing UBL will allow us to pack up and leave Afghanistan and disassemble our domestic homeland security efforts. Unfortunately, neither is likely, and a rush to either outcome would leave America more vulnerable not less. In the short run, the death of UBL will actually raise the terror risk against the U.S. homeland. Not so much from organized groups, but from a lone wolf inspired by the death of UBL to carry out a conventional revenge attack not unlike the Fort Hood shooting or the LAX El Al ticket counter shooting in 2002. Whether, in the short run, al-Qaeda can muster an organized catastrophic attack in retaliation for UBL's demise seems unlikely, for if they could, they would have done it already regardless of UBL's death.

In the long run, UBL's killing will not end the war between the U.S. and radical Islamists as al-Qaeda has long been in the franchise business making it much more difficult to defeat as a single entity. However, it will demonstrate our seriousness to our enemies potentially weakening their own resolve over time to continue the fight. However, UBL's demise may even further inspire elements of al-Qaeda, particularly al-Qaeda in the Arabian Peninsula to attempt another catastrophic attack against the homeland since our enemies have a much different sense of time and are willing to wait years, even decades, to carry out attacks. Since al-Qaeda is no longer a single group all of these results are possible.

Regardless of the fact that our killing UBL will not end the war in Afghanistan tomorrow or end terror threats against the U.S. going forward, bin Laden’s death should send a clear message to all involved: The U.S. is no paper tiger, but rather, is patient, capable and willing at times to do what needs to be done to defend itself and defeat its enemies.     


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April 12, 2011

It’s here. Well, the bill hasn’t passed and the President has not signed it into law, but the House and Senate have agreed upon the funding details for what remains of Federal FY 2011. In that agreement rests the funding numbers for the homeland security grant programs. While most of the programs survived, virtually all of the programs suffered cuts. Some suffered dramatic cuts. Here are the details:

Fire Fighter Assistance Grants - $810 million, which includes:
 $405 million for equipment
 $405 million for personnel
 
State Homeland Security Program - $725 million, which includes:
$55 million for Stonegarden
$45 million for Driver’s License Security
$10 million for Citizen Corps
$35 million for MMRS

Urban Areas Security Initiative - $725 million, which includes:
 $19 million for Non-Profit Security Grants

Transit Security Grant program - $250 million, which includes:
 $20 million for Amtrak
 $5 million for Over the Road Bus Security Grants

Port Security Grant Program - $250 million

Emergency Management Performance Grants - $340 million

Emergency Operations Center Grants - $15 million

Regional Catastrophic Preparedness Grants - $15 million

 

Grants that have been zeroed out (not funded) for FY 2011 are:

Buffer Zone Protection Program

Interoperable Emergency Communications Grant Program

Only the Assistance to Firefighters and Emergency Management Performance Grants were  funded at the same level as in FY 2010.  Beyond BZPP and IECGP, the big loser for FY 2011 was clearly the SHSP, which is actually funded at $580 million in FY 2011 compared to $890 million in SHSP funding in FY 2010, when you account for several of the other grant programs that are now being counted as part of SHSP, but were stand alone programs in prior years. This $580 million includes the 25% for law enforcement terrorism prevention activities. The requirement that 25% of UASI funding go towards law enforcement terrorism prevention activities also applies in FY 2011.  The UASI program, while not the biggest loser among the grants, was by no means a winner in the process. The $162 million cut to UASI, compared to FY 2010 funding levels, will have a major impact on the program going forward as discussed below. 

None of the above listed funding numbers for FY 2011 include the 5.8% that FEMA will take off the top for Management and Administration of the grants. Therefore, the above funding numbers will actually go down even further. In addition, under the bill, FEMA has up to 25 days to release grant guidance for SHSP and UASI and the applicants can be given up to 90 days to apply. However, since the funds are one year money, meaning FEMA has to award the money to the States before September 30, 2011; FEMA will likely give the States 30 days to apply instead of the usual 90 days. 

The Congresswoman Nita Lowey (D-NY) amendment, which passed the House of Representatives as part of H.R. 1 and limited the UASI program to 25 cities, is not part of the final budget bill. However, with the large cut in UASI funding, it is now on DHS to decide how to distribute the remaining UASI funds. This will likely turn on how DHS decides to treat New York City. If DHS decides to hold New York harmless and fund the city at the same level as FY 2010, it will have to impose large cuts on the remaining UASI cities and/or trim the list by dropping certain cities. If DHS cuts New York in order to salvage the current list of UASI’s it will incur the wrath of New York similar to what happened in FY 2006 when the city saw a cut in its funding as compared to the previous fiscal year. This is no enviable task for DHS as it will be attacked no matter what it decides to do.

Finally, State and Urban Areas must do a better job of explaining the benefits of the SHSP and UASI programs in terms of how the programs reduce the nation’s risk to terrorism and other hazards by enhancing capabilities. This must be data driven and go beyond simply anecdotes of good things purchased. Congress must be given some performance measures and metrics to determine the value of its investment in State and local homeland security preparedness. As with the overall budget, the fights and cuts in Congress in FY 2011 are small compared to what is coming in FY 2012. Thus, cuts to homeland security grants could get even deeper and the time for States and Urban Areas to organize in order to salvage these programs is getting smaller as well. 


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