When DHS was created it was marketed as a consolidation of key counter-terrorism agencies and functions that had previously been spread incoherently throughout the government. However, in the end, while several agencies and functions did come into DHS, as outlined in Carafano's article, all too many did not. This includes issuing visas, (State Department), managing the No Fly List, (FBI), and serving as the hub for homeland security intelligence, (National Counter Terrorism Center). All of this has caused confusion from the start, which Congress and both the Bush and Obama Administration's have compounded by making the DHS Secretary the face of homeland security for appearances, but in function relegating DHS to junior partner in the conglomerate of federal counter-terrorism agencies.
Perhaps no case better exemplifies the disconnect between DHS and the larger homeland security mission than the decision to keep the FBI out of the new department. Even before the flight 253 attack, Fox News ran a story outlining the internal fighting between the FBI and DHS on matters involving information sharing with state and local law enforcement generally and the recent Naji Bullazazi case in particular.
Fear and Chaos
In 2002, when the creation of DHS was being debated, the issue of whether the FBI should be inside the new department garnered much attention. Some would argue the FBI fought as hard against becoming a part of DHS as it has in fighting al-Qaeda. All kidding aside, why did the FBI resist going into DHS back in 2002? Two reasons perhaps best summarize the answer: chaos and fear of the unknown.
To understand the FBI's fears of going into DHS one need only look to the U.S. Customs Service, or rather the former U.S. Customs Service. The Customs Service had been intact since 1789, but upon its entry into DHS the U.S. Customs Service as we knew it is gone, split into two parts with its investigators now working with former INS investigators at the new Immigration and Customs Enforcement and its inspectors working with the Border Patrol at the new Customs and Border Protection.
In addition to the FBI's fear of being disbanded, there was the inevitable chaos surrounding the establishment of DHS. In 2002, the Bureau was going through very painful reorganizations of its own and the weight of the two events, internal reorganization and external placement in a new department, may have proven too much for the FBI while it was being charged with preventing the next attack inside the homeland.
A Conflict of National Security Interest
Despite the FBI's fears, there is an inherent conflict in having the primary responsibility to prevent and protect against terrorism separate from the primary responsibility to investigate and counter terrorism. Indeed, the primary mission of the FBI is to "protect and defend the United States against terrorist and foreign intelligence threats." Under the Homeland Security Act of 2002, the primary mission of DHS is "to prevent terrorist attacks within the United States." However, the 2002 Act goes on to specify that, "primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over acts of terrorism." That clause, coupled with the FBI being kept out of DHS, has been a major factor in the division between DHS and the means to carry out its mission.
Protection versus Investigations
The U.S. Secret Service, a DHS component, actually presents a case study on the issue of separating investigations from security, as well as what the FBI's placement in DHS could have looked like. Under the Homeland Security Act, the Secret Service was placed into DHS with the caveat that it had to be "maintained as a distinct entity within the Department" meaning it could not be disbanded the way Customs was.
As a law enforcement agency, the Secret Service is unique in many ways, particularly in that the success of one its core missions, protecting the President, Vice President, etc. (protectees) is achieved if it prevents attacks against those protectees. The purpose of investigating all threats against the President is to prevent the threats from materializing into actual attacks. No investigation is judged a "success" if a President is assassinated and the assassin is subsequently arrested, prosecuted and convicted. Coincidentally, the FBI leads the investigation into such actual attacks.
In its 1964 report on the assassination of President Kennedy, the Warren Commission, in evaluating the different federal agencies and their respective roles and responsibilities in protecting the President, noted that removing the responsibility for investigating threats against the President from the Secret Service and placing that function in a different federal agency, notably the FBI, could undermine the Secret Service's fundamental role of protection:
It is suggested that an organization shorn of its power to investigate all the possibilities of danger to the President and becoming merely the recipient of information gathered by others would become limited solely to acts of physical alertness and personal courage incident to its responsibilities. So circumscribed, it could not maintain the esprit de corps or the necessary alertness for this unique and challenging responsibility.
Concerning the flight 253 attack, Secretary Napolitano recently told Congress that DHS is largely a "consumer" of intelligence when it comes to homeland security. This is correct and precisely the situation the Warren Commission warned against concerning the Secret Service. The decision keep the FBI out of DHS has effectively separated prevention from protection where the protectee is the United States itself.
No Silver Bullet
Placing the FBI in DHS would not miraculously remove all of the conflicts over jurisdiction, roles and responsibilities between the Bureau and the current DHS operational components. The FBI has had numerous such battles over the years with sister Justice Department agencies including the DEA and ATF. Battles over jurisdiction and turf are an art form in Washington, particularly within the intelligence and law enforcement communities, regardless of where they sit on an organization chart.
Nonetheless, if we truly wanted a single agency whose primary mission was the protection of the homeland from terrorism, placing the FBI in DHS would have made that aspiration closer to a reality. It also would have more closely aligned federal law enforcement organization with state and local law enforcement organization, which more often separates the prosecutors from the police and investigators.
Organizational charts do matter. Clear lines of authority and responsibility are foundational elements for the success of any entity. Since its inception, DHS has had to deal with federal agencies and authorities necessary to carry out the homeland security mission being kept outside the department. The flight 253 case is just another reminder of this fact.
While DHS does play an important role in the current homeland security structure, it is a far cry from how it was marketed during its founding, as well as how it's perceived by the public today. This adversely impacts both public confidence in the department and actual operations.
Whether federal agencies or functions are ever consolidated in the department charged with leading the unified national effort to secure the homeland is anyone's guess. In the meantime, the disconnect between the homeland security mission and the department established to lead it will continue.