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A Course Correction for Homeland Security

Summary: Twenty years after its founding, the Department of Homeland Security struggles to carry out its sweeping counterterrorism mission effectively and equitably. This report identifies five avenues for reform.

In the wake of 9/11, Congress estab­lished a new cabinet agency with a singu­lar mission: to keep the coun­try safe from terror­ism. The Depart­ment of Home­land Secur­ity (DHS) brought together 22 agen­cies with dispar­ate func­tions under one roof. Two decades on, it struggles to carry out its work effect­ively and equit­ably.

Experts and advoc­ates have scru­tin­ized recur­ring abuses in DHS’s enforce­ment of immig­ra­tion law and proposed robust reforms. foot­note1_stq618e 1 A substan­tial amount of discus­sion in this report involves harms to Amer­ic­ans. The authors recog­nize the signi­fic­ant and detri­mental consequences of DHS activ­it­ies for immig­rant communit­ies and trav­el­ers of other nation­al­it­ies. This report is not meant to dimin­ish those harms but rather to fill what we perceive to be a gap in policy discus­sions regard­ing DHS. DHS’s coun­terter­ror­ism initi­at­ives, by contrast, often oper­ate under the public’s radar. So, too, do its travel and immig­ra­tion screen­ing programs. Yet these activ­it­ies touch the lives of millions of Amer­ic­ans every day.

The depart­ment has aggress­ively targeted Muslims, communit­ies of color, and social justice move­ments in the name of secur­ity. It conceals inform­a­tion about its vast data­bases and intrus­ive surveil­lance tech­no­lo­gies. And it often embarks on ventures that implic­ate Amer­ic­ans’ privacy, civil rights, and civil liber­ties without even estab­lish­ing or meas­ur­ing their useful­ness.

These prob­lems have long festered due to a danger­ous combin­a­tion of broad author­it­ies, weak safe­guards, and insuf­fi­cient over­sight. The Trump admin­is­tra­tion brought them to the fore. DHS agents enforced the pres­id­ent’s ban on trav­el­ers from half a dozen Muslim-major­ity coun­tries, wrenched chil­dren from parents at the south­ern border, escal­ated viol­ence at protests from Wash­ing­ton, DC, to Port­land, Oregon, spied on journ­al­ists and activ­ists, and menaced immig­rant communit­ies from New York to New Mexico.

For most of its exist­ence, DHS focused too narrowly on so-called inter­na­tional terror­ism. It construed this mandate to include the activ­it­ies of Amer­ican Muslims, regard­less of whether they had connec­tions to foreign terror­ist groups. foot­note2_8z0due2 2 In the last two decades, the U.S. govern­ment has often treated the actions of indi­vidu­als in the United States said to be influ­enced by groups like al-Qaeda and ISIS as inter­na­tional terror­ism, even absent any indic­a­tion of oper­a­tional links or other concrete connec­tions, on the theory that they promoted a common “foreign” ideo­logy. Only belatedly is DHS turn­ing its atten­tion to domestic terror­ism, partic­u­larly far-right polit­ical viol­ence. In 2021, Secret­ary Alejandro Mayor­kas announced that the depart­ment will increase grants for state and local govern­ments and add a divi­sion to its intel­li­gence arm.

But simply shift­ing its focus is not enough. The Biden admin­is­tra­tion has yet to crit­ic­ally eval­u­ate the depart­ment’s post-9/11 missteps or fix the systems that have entrenched them. A course correc­tion is crit­ical.

With the Home­land Secur­ity Act of 2002, Congress tasked the new depart­ment with keep­ing the coun­try safe from terror­ist attacks. But DHS is far from the sole federal agency with a coun­terter­ror­ism mission. The Federal Bureau of Invest­ig­a­tion (FBI), the National Secur­ity Agency (NSA), and the Office of the Director of National Intel­li­gence, among other agen­cies, carry the lion’s share of respons­ib­il­ity for it. DHS carved out a role for itself in two main areas: part­ner­ships with state, local, tribal, and territ­orial author­it­ies and screen­ing of trav­el­ers and immig­rants.

Section I of this report iden­ti­fies the agency’s coun­terter­ror­ism collab­or­a­tions with state and local author­it­ies and private firms. These programs have routinely surveilled Amer­ican Muslims, trau­mat­iz­ing entire communit­ies and cast­ing them as hotbeds of terror­ism. DHS agents have deployed these very tools against protest­ors, activ­ists, and journ­al­ists.

Section II turns to travel and immig­ra­tion screen­ing programs. DHS has accu­mu­lated vast stores of inform­a­tion about people who travel into, out of, and over the United States. The Trans­port­a­tion Safety Admin­is­tra­tion (TSA) and Customs and Border Protec­tion (CBP), among other DHS compon­ents, use this data to draw infer­ences about them, docu­ment their move­ments, and subject them to warrant­less searches and inter­rog­a­tions. Agents do all of this without suspi­cion of poten­tial wrong­do­ing. Unsur­pris­ingly, reports of reli­gious or ethnic profil­ing are common.

Section III analyzes DHS’s over­sight infra­struc­ture. Three primary offices — the Privacy Office, the Office for Civil Rights and Civil Liber­ties (CRCL), and the Office of Inspector General (OIG) — have curbed some of the depart­ment’s trans­gres­sions. But they have allowed many other civil rights and civil liber­ties viol­a­tions to continue.

Finally, this report iden­ti­fies five aven­ues for reform: stronger safe­guards against profil­ing; better protec­tions for privacy and free expres­sion; rigor­ous eval­u­ations of program effic­acy; mean­ing­ful trans­par­ency about data hold­ings and the implic­a­tions DHS programs have for civil rights and civil liber­ties; and more robust internal over­sight. Forth­com­ing Bren­nan Center reports will delve into these recom­mend­a­tions in greater detail.

The secret­ary of home­land secur­ity can — and should — make these changes now. The ease with which Pres­id­ent Donald Trump weapon­ized DHS against both immig­rants and citizens demon­strates that there are not suffi­cient safe­guards against abuse. It is time for DHS to rein in its discrim­in­at­ory and inef­fect­ive approaches and prevent new ones from being insti­tu­tion­al­ized.

End Notes