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The Department of Homeland Security Needs Long Overdue Oversight

A new spending bill would have allowed Congress to increase oversight over a department that is losing control.

July 30, 2020

This origin­ally appeared in Just Secur­ity.

This week, congres­sional appro­pri­at­ors may attach a home­land secur­ity spend­ing bill to a broader fund­ing pack­age. If that goes forward, it could let slip the best oppor­tun­ity before Janu­ary 2021 for Congress to exer­cise over­sight author­ity over a Depart­ment of Home­land Secur­ity veer­ing out of control.

Even before DHS deployed its milit­ary-styled law enforce­ment person­nel into the streets of Port­land, Oregon, more robust congres­sional over­sight of the depart­ment was long over­due. In the 18 years since its creation, DHS has ballooned: It oper­ates with a $50 billion budget and has a work­force of more than 240,000 employ­ees. It is also the coun­try’s largest law enforce­ment agency, with over 60,000 law enforce­ment officers. And its activ­it­ies have grown in paral­lel, so that they are now substan­tially out of sync with its stat­utory mandate. For instance, Home­land Secur­ity Invest­ig­a­tions, a compon­ent of Immig­ra­tion and Customs Enforce­ment (ICE), claims the author­ity to invest­ig­ate liter­ally any federal crime.

Over­sight and account­ab­il­ity of this massive depart­ment have lagged far behind. The agency’s sheer size and its sprawl­ing, diverse missions have hobbled effect­ive internal over­sight. The secret­ary’s office is too small (and, in the current admin­is­tra­tion, too polit­ic­ally pliable) to conduct adequate super­vi­sion. Internal controls, guidelines, and coordin­at­ing mech­an­isms are often lack­ing or woefully insuf­fi­cient.

Over­sight by congres­sional commit­tees has also been diffi­cult for two reas­ons. First, juris­dic­tion over the depart­ment is spread across more than 100 commit­tees and subcom­mit­tees, creat­ing compet­i­tion, confu­sion, and gaps in cover­age. That’s why consol­id­at­ing congres­sional over­sight of DHS remains the most import­ant recom­mend­a­tion of the 9/11 Commis­sion that has never been imple­men­ted. Second, the polit­ical dialogue concern­ing immig­ra­tion and border secur­ity specific­ally has become so polar­ized that bipar­tisan cooper­a­tion on DHS over­sight has been severely strained.

It is no wonder, under these circum­stances, that there have been signi­fic­ant prob­lems with the depart­ment’s perform­ance. In 2012, a Senate Home­land Secur­ity subcom­mit­tee report found that the depart­ment’s fusion centers “often produced irrel­ev­ant, useless or inap­pro­pri­ate intel­li­gence report­ing to DHS, and many produced no intel­li­gence report­ing what­so­ever.” In 2015, Senator Tom Coburn (R-Okla.) released a report conclud­ing: “Despite spend­ing nearly $61 billion annu­ally and $544 billion since 2003, the Depart­ment of Home­land Secur­ity is not execut­ing any of its five main missions.”

Equally concern­ing, the actions of the depart­ment – partic­u­larly its immig­ra­tion agen­cies – have been marked by a grow­ing disreg­ard for the rule of law. Docu­ments show that, after Pres­id­ent Donald Trump issued his travel ban for seven major­ity-Muslim coun­tries in Janu­ary 2017, Customs and Border Protec­tion (CBP) offi­cials delib­er­ately ignored court orders and refused to allow trav­el­ers to speak with lawyers. The agency flouted court dead­lines to reunite chil­dren separ­ated from their parents at the border. It instruc­ted border agents to turn away asylum seekers in viol­a­tion of the law.

This trend toward lawless­ness is on full display in Port­land. Videos captured by bystand­ers show uniden­ti­fied federal agents, dressed in camou­flage, conduct­ing arrests and deten­tions that look more like kidnap­ping than law enforce­ment. Agents are routinely using tear gas and have fired rubber bullets at members of the press. And they appear to have gone far beyond their remit to protect federal facil­it­ies, encroach­ing on state police powers and the Tenth Amend­ment to the U.S. Consti­tu­tion. Even the U.S. Attor­ney for the District of Oregon, an officer in Trump’s own Depart­ment of Justice, referred agents’ conduct for further invest­ig­a­tion by the DHS Office of Inspector General.

Given this state of affairs, there is no excuse for Congress to rush through another multi-billion-dollar appro­pri­ation for the depart­ment. Before any funds are made avail­able, Congress should conduct some of the over­sight that’s been miss­ing to date.

Congress should start by hold­ing hear­ings to demand answers about the conduct of DHS agents in Port­land (one such hear­ing is already sched­uled for this Friday, but House lead­er­ship is still plan­ning to move forward with DHS appro­pri­ations in the interim). But it should not stop there. Congress should insist that the pres­id­ent fulfill his consti­tu­tional respons­ib­il­ity to nomin­ate a DHS secret­ary, a posi­tion that has been filled by “acting” secret­ar­ies since April 2019. It should require the depart­ment to develop, modern­ize and, to the extent consist­ent with national secur­ity, publish oper­a­tional guidelines ensur­ing that the depart­ment’s law enforce­ment activ­it­ies are conduc­ted with appro­pri­ate care for consti­tu­tional rights and clear chan­nels of account­ab­il­ity. It should commis­sion a thor­ough outside review of the legal author­it­ies and activ­it­ies of Home­land Secur­ity Invest­ig­a­tions. These actions can then inform, not only any condi­tions or limit­a­tions that Congress might want to place on fund­ing, but addi­tional legis­lat­ive reforms to tackle the depart­ment’s many prob­lems.

The DHS appro­pri­ations bill that the House plans to consider does include some signi­fic­ant improve­ments; for instance, it reduces fund­ing for immig­ra­tion deten­tion and rescinds fund­ing for construc­tion of the border wall. But as the situ­ation in Port­land has reminded us, far more needs to be done. The lever­age afforded by the appro­pri­ations cycle presents the best and perhaps only oppor­tun­ity for Congress to confront a depart­ment run amok.