Intro to Homeland Security

CHAPTER 4

The Development of Homeland Security

Chapter Objectives

Understand that the Department of Homeland Security was initially conceived of as the Office of Homeland Security within the White House/Executive branch

Learn about the passage of the USA PATRIOT Act and the myriad laws it contained

Comprehend that the Homeland Security Act established the Department of Homeland Security

Understand the role of Homeland Security Presidential Directives in the implementation of homeland security in America

Chapter Outline

• Introduction

• Office of Homeland Security

• USA PATRIOT Act

• The Homeland Security Act of 2002

• Homeland Security Presidential Directives

• Chapter Summary

Introduction

President George W. Bush was in Sarasota, Florida, visiting a class of children at Emma Booker Elementary School.1 The President was seated in a classroom when, at 9:05 AM, Andrew Card (Chief of Staff) whispered to him: “A second plane hit the second tower. America is under attack.”2

The President later explained that his first instinct was to project calm, not to have the country see an excited reaction from him at a moment of crisis. The press was standing behind the children; he saw their phones and pagers start to ring. The President felt he should project strength and calm until he could better understand what was happening.3

The President remained in the classroom for another 5–7 minutes, while the children continued reading. He then returned to a holding room shortly before 9:15, where he was briefed by staff and saw television coverage. He next spoke to Vice President Dick Cheney, National Security Advisor Condoleezza Rice, New York Governor George Pataki, and FBI Director Robert Mueller (who assumed the directorship on September 4, 2001). He decided to make a brief statement from the school before leaving for the airport. The Secret Service later explained their priority was to move the President to a safer location, but they did not think it imperative to run him out the door.

Between 9:15 and 9:30, the staff was busy arranging a return to Washington, while the President consulted his senior advisers about his remarks. No one in the Bush party had any information during this time that other aircraft were hijacked or missing. Staff was in contact with the White House Situation Room, but no one was in contact with the Pentagon. The focus was on the President’s statement to the nation. The only decision made during this time was to return to Washington. The President then briefly addressed the nation (see Box 4.1).

© Doug Mills/AP Images.

The President’s motorcade then departed at 9:35 and arrived at the airport between 9:42 and 9:45. During the ride, the President learned about the attack on the Pentagon. He boarded the aircraft, asked the Secret Service about the safety of his family, and called the Vice President. According to notes of the call, at about 9:45 the President told the Vice President: “Sounds like we have a minor war going on here. I heard about the Pentagon. We’re at war … somebody’s going to pay.”4

About this time, Card, the lead Secret Service agent, the President’s military aide, and the pilot were conferring on a possible destination for Air Force One. The Secret Service agent felt strongly that the situation in Washington was too unstable for the President to return there, and Card agreed. The President strongly wanted to return to Washington and only grudgingly agreed to go elsewhere. The issue was still undecided when the President conferred with the Vice President at about the time Air Force One was taking off. The Vice President recalled urging the President not to return to Washington. Air Force One departed at about 9:54 without any fixed destination. The objective was to get up in the air—as fast as possible—and then decide where to go.

BOX 4.1 Remarks in Sarasota, Florida, on the Terrorist Attack on New York City’s World Trade Center, September 11, 2001

Today we’ve had a national tragedy. Two airplanes have crashed into the World Trade Center in an apparent terrorist attack on our country. I have spoken to the Vice President, to the Governor of New York, to the Director of the FBI and have ordered that the full resources of the Federal Government go to help the victims and their families and to conduct a full-scale investigation to hunt down and to find those folks who committed this act.

Terrorism against our Nation will not stand.

And now if you would join me in a moment of silence.

[A moment of silence was observed.]

May God bless the victims, their families, and America.

Thank you very much.

Reproduced from: Bush, George W. (2001). “Remarks in Sarasota, Florida, on the Terrorist Attack on New York City’s World Trade Center.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S. G.P.O.

In the meantime, the White House was notified that an unauthorized plane was heading toward Washington, D.C., and it was not communicating. The Vice President was rushed into the tunnels underneath the White House to a protective bunker. He stopped at one point in the tunnel where a bench, television, and phone were available. After verification of the missing plane and the attack on the Pentagon, Vice President Cheney contacted the President and advised him not to return to Washington. After the call ended, Mrs. Cheney and the Vice President moved from the tunnel to the shelter conference room.

President Bush reluctantly acceded to this advice, and at about 10:10 Air Force One changed course and began heading due west. The immediate objective was to find a safe location, not too far away, where the President could land and speak to the American people. The Secret Service was also interested in refueling the aircraft and paring down the size of the traveling party. The President’s military aide, an Air Force officer, quickly researched the options and, sometime around 10:20, identified Barksdale Air Force Base, Louisiana, as an appropriate interim destination.

When Air Force One landed at Barksdale at about 11:45, personnel from the local Secret Service were still en route to the airfield. The motorcade consisted of a military police lead vehicle and a van; the proposed briefing theater had no phones or electrical outlets. Staff scrambled to prepare another room for the President’s remarks. The President completed his statement, which for security reasons was taped and not broadcast live, and the traveling party returned to Air Force One. At 2:30 PM, the President’s address was released to the nation (see Box 4.2).

The next destination was discussed. Once again, the Secret Service recommended against returning to Washington, and the Vice President agreed. Offutt Air Force Base in Nebraska was chosen because of its elaborate command and control facilities, and because it could accommodate overnight lodging for 50 persons. The Secret Service wanted a place where the President could spend several days, if necessary.

BOX 4.2 Remarks at Barksdale Air Force Base, Louisiana, on the Terrorist Attacks, September 11, 2001

Freedom itself was attacked this morning by a faceless coward, and freedom will be defended. I want to reassure the American people that the full resources of the Federal Government are working to assist local authorities to save lives and to help the victims of these attacks. Make no mistake: The United States will hunt down and punish those responsible for these cowardly acts.

I’ve been in regular contact with the Vice President, the Secretary of Defense, the national security team, and my Cabinet. We have taken all appropriate security precautions to protect the American people. Our military at home and around the world is on high-alert status, and we have taken the necessary security precautions to continue the functions of your Government.

We have been in touch with the leaders of Congress and with world leaders to assure them that we will do whatever is necessary to protect America and Americans.

I ask the American people to join me in saying a thanks for all the folks who have been fighting hard to rescue our fellow citizens and to join me in saying a prayer for the victims and their families.

The resolve of our great Nation is being tested. But make no mistake: We will show the world that we will pass this test.

God bless.

Reproduced from: Bush, George W. (2001). “Remarks at Barksdale Air Force Base, Louisiana, on the Terrorist Attacks.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S.

Air Force One arrived at Offutt at 2:50 PM. At about 3:15, President Bush met with his principal advisers through a secure video teleconference. Rice said President Bush began the meeting with the words, “We’re at war,” and that Director of Central Intelligence George Tenet said the agency was still assessing who was responsible, but the early signs all pointed to Al Qaeda.5

The Secretary of Defense directed the nation’s armed forces to Defense Condition 3, an increased state of military readiness. For the first time in history, all nonemergency civilian aircraft in the United States were grounded, stranding tens of thousands of passengers across the country. Contingency plans for the continuity of government and the evacuation of leaders had been implemented. The Pentagon had been struck; the White House or the Capitol had narrowly escaped direct attack. Extraordinary security precautions were put in place at the nation’s borders and ports.

In the late afternoon, the President overruled his aides’ continuing reluctance to have him return to Washington and ordered Air Force One back to Andrews Air Force Base. He was flown by helicopter to the White House, passing over the still-smoldering Pentagon. At 8:30 that evening, President Bush addressed the nation from the White House (see Box 4.3). Following his speech, President Bush met again with his National Security Council, expanded to include Secretary of Transportation Norman Mineta and Joseph Allbaugh, the Director of the Federal Emergency Management Agency. Secretary of State Colin Powell, who had returned from Peru after hearing of the attacks, joined the discussion. They reviewed the day’s events.

It is important to understand that President Bush and his administration now had numerous tasks to perform all at once. Among these tasks included moving America to a war footing and responding militarily to the attack; organizing federal assistance, especially to New York City; determining when civil aviation could be restored, borders and ports reopened, as well as financial markets; and to find some means of responding domestically to the attack, which would become the Office of Homeland Security. While there were multiple tasks at hand, each was not created in a vacuum, but in concert with each other, although when it came to the reviewing domestic capabilities a temporary “domestic consequences” group had to be quickly developed.6

BOX 4.3 Address to the Nation on the Terrorist Attacks, September 11, 2001

© Doug Mills/AP Images.

Good evening. Today our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts. The victims were in airplanes or in their offices: secretaries, business men and women, military and Federal workers, moms and dads, friends and neighbors. Thousands of lives were suddenly ended by evil, despicable acts of terror.

The pictures of airplanes flying into buildings, fires burning, huge structures collapsing have filled us with disbelief, terrible sadness, and a quiet, unyielding anger. These acts of mass murder were intended to frighten our Nation into chaos and retreat, but they have failed. Our country is strong.

A great people has been moved to defend a great nation. Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shattered steel, but they cannot dent the steel of American resolve. America was targeted for attack because we’re the brightest beacon for freedom and opportunity in the world. And no one will keep that light from shining.

Today our Nation saw evil, the very worst of human nature. And we responded with the best of America, with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could.

Immediately following the first attack, I implemented our Government’s emergency response plans. Our military is powerful, and it’s prepared. Our emergency teams are working in New York City and Washington, DC, to help with local rescue efforts.

Our first priority is to get help to those who have been injured and to take every precaution to protect our citizens at home and around the world from further attacks.

The functions of our Government continue without interruption. Federal agencies in Washington which had to be evacuated today are reopening for essential personnel tonight and will be open for business tomorrow. Our financial institutions remain strong, and the American economy will be open for business as well.

The search is underway for those who are behind these evil acts. I’ve directed the full resources of our intelligence and law enforcement communities to find those responsible and to bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.

I appreciate so very much the Members of Congress who have joined me in strongly condemning these attacks. And on behalf of the American people, I thank the many world leaders who have called to offer their condolences and assistance.

America and our friends and allies join with all those who want peace and security in the world, and we stand together to win the war against terrorism.

Tonight I ask for your prayers for all those who grieve, for the children whose worlds have been shattered, for all whose sense of safety and security has been threatened. And I pray they will be comforted by a power greater than any of us, spoken through the ages in Psalm 23: “Even though I walk through the valley of the shadow of death, I fear no evil, for You are with me.”

This is a day when all Americans from every walk of life unite in our resolve for justice and peace. America has stood down enemies before, and we will do so this time. None of us will ever forget this day. Yet, we go forward to defend freedom and all that is good and just in our world.

Thank you. Good night, and God bless America.

Reproduced from: Bush, George W. (2001). “Address to the Nation on the Terrorist Attacks.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S. G.P.O.

The process of reviewing these issues during this time of crisis underscored an absence of an effective government organization dedicated to assessing domestic vulnerabilities and handling problems of protection and preparedness. Though a number of agencies had some part of the task, none had security as its primary mission. What then developed in the months ahead were a number of responses to this deficiency. The first was the development of the Office of Homeland Security within the White House, which would assume these responsibilities. The second was the development of new tools for protection and preparedness that within 6 weeks became the USA PATRIOT Act. Third, was the implementation of a series of presidential directives to begin implementing changes in the way America protected itself against future terrorist attacks. And, finally, the even greater task of creating a Department of Homeland Security, a new cabinet level bureaucracy that would deal more directly with assessing vulnerabilities and handling the problems of protection and preparedness through an aggregate of multiple agencies and various agency components. These four actions, which all followed the 9-11 attacks, occurred quite rapidly: September 20, October 26, October 29, and November 25, 2002 respectively, forming the basis for modern-day homeland security in America.

KEY TERM

Office of Homeland Security—the office inside of the White House (Executive Branch) led by former Governor Tom Ridge, charged with securing the homeland, and which served as the nucleus for the Department of Homeland Security.

KEY TERM

USA PATRIOT Act—a ten-letter acronym for federal legislation formally titled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

KEY TERM

Department of Homeland Security—a federal cabinet-level agency created in 2002 by taking various pre-existing agencies and placing them under one federal bureaucracy charged with protecting America’s homeland.

Office of Homeland Security

In the aftermath of the attacks on September 11, 2001, the following day, President Bush toured the damage at the Pentagon in Arlington, Virginia. He gave a short speech noting that, “Coming here makes me sad, on the one hand; it also makes me angry. Our country will, however, not be cowed by terrorists, by people who don’t share the same values we share, by people who are willing to destroy people’s lives because we embrace freedom. The nation mourns, but our government will go on; the country will function. We are on high alert for possible activity.”7 Several days later, on September 14th, Bush toured the remains of the World Trade Center site in New York City. There he had a memorable exchange with the rescue workers. He began to speak, but an audience member yelled, “Can’t hear you.”8 The President said, “I can’t get any louder,” and the audience laughed.9

He then began with his prepared speech stating that the nation mourned the loss of thousands of lives. Several people surrounding the president shouted, “I can’t hear you.”10 And President Bush, in an impromptu statement shouted back, “I can hear you. I can hear you. The rest of the world hears you. And the people who knocked these buildings down will hear from us soon”11 The crowd cheered and broke into a chant of “USA USA USA”12

© The White House/Getty Images.

The President returned to Washington, D.C. and worked on the development of a proper response to the attacks, both militarily and domestically. On September 20, 2001, President Bush appeared before a joint session of Congress to speak to the American people about the tragic events of 9-11 and his administration’s response (see Box 4.4). In this speech, Bush announced the creation of an Office of Homeland Security and he named former Pennsylvania Governor Tom Ridge as the new office’s first director (see Box 4.5).

BOX 4.4 Address Before a Joint Session of the Congress of the United States Proposing New Office of Homeland Security, September 20, 2001

Our Nation has been put on notice: We are not immune from attack. We will take defensive measures against terrorism to protect Americans. Today dozens of Federal departments and agencies, as well as State and local governments, have responsibilities affecting homeland security. These efforts must be coordinated at the highest level.

So tonight I announce the creation of a Cabinet-level position reporting directly to me, the Office of Homeland Security. And tonight I also announce a distinguished American to lead this effort to strengthen American security, a military veteran, an effective Governor, a true patriot, a trusted friend, Pennsylvania’s Tom Ridge. He will lead, oversee, and coordinate a comprehensive national strategy to safeguard our country against terrorism and respond to any attacks that may come.

These measures are essential. But the only way to defeat terrorism as a threat to our way of life is to stop it, eliminate it, and destroy it where it grows. Many will be involved in this effort, from FBI agents to intelligence operatives to the reservists we have called to active duty. All deserve our thanks, and all have our prayers. And tonight, a few miles from the damaged Pentagon, I have a message for our military: Be ready. I’ve called the Armed Forces to alert, and there is a reason. The hour is coming when America will act, and you will make us proud …

Reproduced from: Bush, George W. (2001). “Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11. September 20, 2001.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S. G.P.O.

BOX 4.5 Tom Ridge, Homeland Security Secretary, 2003–2005

On January 24, 2003, Tom Ridge became the first Secretary of the Department of Homeland Security. Ridge worked with more than 180,000 employees from combined agencies to strengthen our borders, provide for intelligence analysis and infrastructure protection, improve the use of science and technology to counter weapons of mass destruction, and to create a comprehensive response and recovery division.

Tom Ridge was sworn in as the first Director of the Office of Homeland Security in October 2001, following the tragic events of September 11. The charge to the nation’s new director of homeland defense was to develop and coordinate a comprehensive national strategy to strengthen the United States against terrorist threats or attacks. In the words of President George W. Bush, he had the strength, experience, personal commitment, and authority to accomplish this critical mission. Ridge stepped down as Secretary in February 2005.

Ridge was twice elected Governor of Pennsylvania, serving from 1995 to 2001. He kept his promise to make Pennsylvania “a leader among states and a competitor among nations.” Governor Ridge’s aggressive technology strategy helped fuel the state’s advances in the priority areas of economic development, education, health, and the environment.

Born Aug. 26, 1945, in Pittsburgh’s Steel Valley, Governor Ridge was raised in a working class family in veterans’ public housing in Erie. He earned a scholarship to Harvard, graduating with honors in 1967. After his first year at The Dickinson School of Law, he was drafted into the U.S. Army, where he served as an infantry staff sergeant in Vietnam, earning the Bronze Star for Valor. After returning to Pennsylvania, he earned his law degree and was in private practice before becoming assistant district attorney in Erie County. He was elected to Congress in 1982. He was the first Congressman to have served as an enlisted man in the Vietnam War, and was overwhelmingly re-elected five times.

Reproduced from: Department of Homeland Security. (2012). “Tom Ridge, Homeland Security Secretary 2003-2005.” Department of Homeland Security.

In the days following the speech, President Bush and his administration crafted an Executive Order that created not only the Office of Homeland Security, but also a Homeland Security Council. The Executive Order was signed on October 8, 2001, and put into motion the beginning of what became the largest major bureaucratic restructuring of the federal government since World War II.

The mission of the Office of Homeland Security was to “develop and coordinate the implementation of a comprehensive national strategy to secure the United States from terrorist threats or attacks.”13 The functions of the office were intended to “coordinate the executive branch’s efforts to detect, prepare for, prevent, protect against, respond to, and recover from terrorist attacks within the United States.”14 More specifically, the functions of the new office were spelled out in more detail under ten areas of focus: (1) the development of a national strategy working with executive departments and agencies, state and local governments, as well as private entities; (2) the detection of terroristic threats through the collection and analysis of information; (3) preparednessfor and mitigation of the consequences of terrorist threats and attacks; (4) protection of critical infrastructure; (5) response and recovery from terrorist attacks; (6) incident management; (7) continuity of government; (8) public affairs; (9) review of legal authorities and development of legislative proposals; and (10) budget review.

Essentially, it was intended that the new Director of Homeland Security would work as an adviser to the President for domestic threats, much in the same way that the National Security Adviser (Dr. Condoleezza “Condi” Rice at the time) advises the President on international threats. In fact, the Chief of Staff to the President, Andrew H. Card, Jr., explained it this way: “If you take a look at what Condi Rice does so effectively, you’ll get an idea what Governor Ridge will be doing just as effectively.”15

The position of National Security Adviser had been created in 1947 in the aftermath of World War II and the beginning of the Cold War. The purpose of the position was to have one adviser to the President who worked through a council that coordinated national defense, intelligence, and diplomatic relations in order to advise on international threats to the United States. Thus, the second half of the Executive Order on the Office of Homeland Security emulated the National Security Council with its own Homeland Security Council. The Director of Homeland Security would oversee this new council, being responsible for “advising and assisting the President with respect to all aspects of homeland security” and the council “shall serve as the mechanism for ensuring coordination of homeland security-related activities of executive departments and agencies and effective development and implementation of homeland security policies.”16 Director Tom Ridge and his new council, barely formed, hit the ground running and began carrying out the various charges of his new office.

© Gerald L. Nino/DHS/AP Images.

Courtesy of the DHS.

On March 21, 2002, another Executive Order was issued related to the Homeland Security Council. In this case, a Senior Advisory Committee to the Homeland Security Council was created. This was a committee of 21 presidential appointees who could provide advice directly to the President and the Director of Homeland Security, and would be composed of state and local officials, academics, private sector personnel, emergency services personnel, and first responders. The official title of the new committee was the President’s Homeland Security Advisory Council (PHSAC).17

The formation of the Office of Homeland Security within the White House with its Homeland Security Director and Council, as well as the Advisory Council, proved to be a very important element in the eventual development of the Department of Homeland Security. It was the first step in a very rapid process for changing the federal bureaucracy that eventually evolved into the cabinet-level Department of Homeland Security.18 In addition, it also provided the first National Strategy for Homeland Security, once again emulating the National Security Council’s National Security Strategy document. This document was important for it outlined the coordinated plan for homeland security.

USA PATRIOT Act

In the immediate aftermath of the tragedy of 9-11, the United States Congress also went to work. The gravity of the situation called for action. The debates over whether to allow certain bills to move forward, such as the Combating Terrorism Act, which gave more power to the government for investigative purposes, were over. The bills that had languished in committee or had failed passage prior to September 11, 2001 were now dusted off, introduced, and passed within hours. Congress was on a war footing, despite not yet knowing with whom, exactly, America was at war.

In the public policy literature, there are a number of scholars who can explain this phenomenon. Anthony Downs had described the “issue attention cycle” where various public problems go through a five-stage cycle.19 The first stage is the pre-problem stage, where the policymakers, academics, and other interested experts recognize a problem, but the overall majority of Americans do not, hence the problem and its policy solution are not at the forefront of concern. The second stage is alarmed discovery and euphoric enthusiasm, where an event occurs and people instantly become concerned. The policy issue instantly moves to the forefront of people’s attention. September 11 was clearly the American public’s alarmed discovery of terrorism and the threat Al Qaeda posed to the United States. It is in this stage that policies are rapidly passed and a flurry of activity develops to confront the problem. Then Downs’ cycle moves to the third stage, where the realization of the costs cause us to give pause, which moves us into the fourth stage where there is a decline in public interest, and finally to the fifth stage or “post-problem,” where the issue fades to the background and only the experts give the issue any attention. In the case of the 9-11 attacks, the public became instantly concerned and there was, as Downs explains, a “euphoric enthusiasm” to pass policies to protect America.20

Another public policy scholar, John W. Kingdon, explains the passage of polices with more detail.21 Kingdon argues that there are three separate factors that have to come together in order for public policy to pass. He describes these as three “streams” that flow independently of one another but which intersect at some point in order to open up a window of opportunity for passage. There is the problem stream, the solutions stream, and the political stream. The problem stream is the most basic involving a widespread problem, one that most people would identify as a significant problem, that necessitates a governmental response. There must be a solution to the problem, generally created by those in the federal bureaucracy, private sector, or academia. These solutions are generally created by the experts in the area of concern. Finally, there is the political stream, in which both the politicians and the public are paying attention to the problem. When these three streams converge, there is a window of opportunity for the passage of new public policy.

In the case of 9-11, the terrorist attacks by Al Qaeda on American soil were clearly the problem, one in which nearly all of America agreed. The political stream was also present, for the public demanded action and the politicians knew they had to respond. The solution stream then came out of largely everything that had been previously considered by stakeholders as possible solutions to the threat of terrorism, but had either not reached the attention of the politicians or had simply not been passed in the U.S. House or Senate. In short, the attacks and public concern caused politicians to find any and every proposal even remotely related to protecting America against terrorism to be part of the solution—especially anything that would make investigations of terrorists easier in order to protect American against future attacks.

What happened next was a political fight that had long centered around the issue of security versus privacy.22 On the one hand, many Democrats and the American Civil Liberties Union were concerned that if these bills were all introduced and passed, they would take away the civil liberties of many Americans, encroach upon the Fourth Amendment rights against unreasonable searches and seizures, and thus potentially violate the Constitutional rights of Americans. On the other hand, the Republicans and many think-tanks focused on anti-terrorism legislation. They were concerned that without these laws, federal law enforcement’s ability to investigate terroristic threats and conduct counter-terrorism operations against potential terrorist threats would be severely limited. Members of the U.S. Senate came together and discussed what should be in the bill on September 19th, and from there the bill began to be crafted. In reality it was a catch-all bill; many proposals that had been previously entertained and failed, plus many new proposals, were all cobbled together into what became the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001—the USA PATRIOT Act.

The Democrats realized they were in a weak position, for there was a clear need that Congress act decisively, and that it should act with solidarity. In other words, anyone who voted against the new proposal would be seen as anti-American and not overly concerned with responding to the attacks of 9-11. Democrats worked to ensure that all of the proposals that gave more authority to federal law enforcement would have court oversight. In many instances, this type of oversight was included in the bill, but in others it was rejected as being redundant, as oversight was already granted to the courts. What hampered this political wrangling, however, turned out to be a new terroristic threat—anthrax.

© Ron Thomas/AP Images.

One week after September 11, 2001, on September 18, someone began mailing letters containing anthrax spores to various media outlets such as ABC, CBS, and NBC News, as well as Senators Tom Daschle (D-SD) and Patrick Leahy (D-VT). Anthrax spores are a biological agent that appears as a white powder and can enter the body through inhalation, cutaneous contact, as well as ingestion. It causes a skin reaction and lesions and can lead to death.

In the case of the anthrax mailing, 5 people died and 17 others were infected. No one knew at the time if this was another Al Qaeda attack or an act of domestic terrorism (although one individual, Steven Hatfill, was suspected, the investigation shifted later to Bruce Ivins, who then committed suicide. No one was ever held accountable for these biological attacks). The result of the anthrax attacks, however, was to enhance the need to pass the USA PATRIOT Act. The act was introduced into the U.S. House of Representatives on October 23rd and passed 357 to 66 on October 24, 2001. The following day, October 25th, the Senate passed the bill 98 to 1 (Russ Feingold [D-WI] was the lone dissenter), and on October 26, 2001 President George W. Bush signed it into law (see Box 4.6).

The bill, which had integrated numerous earlier proposals and several other bills that had been previously introduced into both the House and Senate, were organized around ten titles (see Box 4.7). Each of these titles consisted of numerous sections (numbering more than 1,000 in total) that detailed the new laws and modifications to previous laws. In fact, more than 15 previous acts, some dating as far back as 1934, were amended by the USA PATRIOT Act (see Box 4.8). As a result, the bill was comprehensive and sweeping in scope. In order to protect against the possibility of too much power being included in the legislation, many of the act’s provisions had a sunset clause, meaning that within a certain timeframe the law would no longer be on the books unless the provision was reauthorized by Congress. Most of these were set to expire on December 31, 2005.

Proponents of the USA PATRIOT Act found that it enhanced the sharing of information between intelligence and law enforcement agencies, tearing down the wall that separated them and allowing them to “connect the dots.”23 It has also been noted that the act gave investigators the same tools to go after terrorists that it already had to go after criminals, particularly those involved in organized crime and drug trafficking, thus allowing law enforcement to conduct investigations without tipping off terrorists. The act was also seen as updating the law to reflect not only the new threats to America but the new technologies that existed, such as cell phones and the Internet. In addition, there was much praise for the enhanced penalties for those who committed terroristic acts, allowing stiffer penalties for those who harbor terrorists, enhancing punishments for those conspiring against the government, and to punish bioterrorists. Finally, the act provided for both judicial and congressional oversight of these new laws and their enforcement to ensure that civil liberties would not be violated.

BOX 4.6 Remarks on Signing the USA PATRIOT Act of 2001, October 26, 2001

… one thing is for certain: These terrorists must be pursued; they must be defeated; and they must be brought to justice. And that is the purpose of this legislation. Since the 11th of September, the men and women of our intelligence and law enforcement agencies have been relentless in their response to new and sudden challenges.

We have seen the horrors terrorists can inflict. We may never know what horrors our country was spared by the diligent and determined work of our police forces, the FBI, ATF agents, Federal marshals, custom officers, Secret Service, intelligence professionals, and local law enforcement officials. Under the most trying conditions, they are serving this country with excellence and often with bravery.

They deserve our full support and every means of help that we can provide. We’re dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike.

For example, this legislation gives law enforcement officials better tools to put an end to financial counterfeiting, smuggling, and money laundering. Secondly, it gives intelligence operations and criminal operations the chance to operate not on separate tracks but to share vital information so necessary to disrupt a terrorist attack before it occurs.

As of today, we’re changing the laws governing information sharing. And as importantly, we’re changing the culture of our various agencies that fight terrorism. Countering and investigating terrorist activity is the number one priority for both law enforcement and intelligence agencies …

This legislation is essential not only to pursuing and punishing terrorists but also preventing more atrocities in the hands of the evil ones. This Government will enforce this law with all the urgency of a nation at war. The elected branches of our Government and both political parties are united in our resolve to find and stop and punish those who would do harm to the American people.

It is now my honor to sign into law the USA PATRIOT Act of 2001.

Reproduced from: Bush, George W. (2001). “Remarks on Signing the USA PATRIOT ACT of 2001.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S. G.P.O.

BOX 4.7 USA PATRIOT Act (2001)—Ten Titles

Title I	Enhancing Domestic Security Against Terrorism
Title II	Surveillance Procedures
Title III	Anti-Money Laundering to Prevent Terrorism
Title IV	Border Security
Title V	Removing Obstacles to Investigating Terrorism
Title VI	Victims and Families of Victims of Terrorism
Title VII	Increased Information Sharing for Critical Infrastructure Protection
Title VIII	Terrorism Criminal Law
Title IX	Improved Intelligence
Title X	Miscellaneous

Reproduced from: P.L. 107-56, 115 Stat. 272 (2001), The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT).

BOX 4.8 Federal Statutes Amended by the USA PATRIOT Act, 2001

Bank Holding Company Act of 1956 12 USC 1841

Communications Act of 1934 47 USC 151 Controlled Substances Import and Export Act 21 USC 951

Controlled Substances Act 21 USC 826

Electronic Communication Privacy Act of 1986 18 USC 2510

Fair Credit Reporting Act 15 USC 1681

Federal Deposit Insurance Act 12 USC 1811

Federal Wiretap Statute 18 USC 119

Foreign Assistance Act of 1961 22 USC 2291

Foreign Intelligence Surveillance Act 50 USC 1805 Intelligence Reform and Terrorism Prevention Act of 2004 118 Stat. 3742

National Security Act 50 USC 401

Omnibus Crime Control and Safe Streets Act of 1968 42 USC 3797

Right to Financial Privacy Act of 1978 12 USC 3401

Violent Crime Control and Law Enforcement Act of 1994 49 USC 46502

Reproduced from: P.L. 107-56, 115 Stat. 272 (2001), The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT).

Opponents of the bill have noted that the law went too far in authorizing indefinite detentions of immigrants for purposes of investigations. They also pointed out that the ability of law enforcement to search homes and businesses without the owner’s permission, or even their knowledge, went far beyond what similar legislation for organized crime and drug trafficking ever provided. Opponents also argued against the use of National Security Letters (NSLs), which allowed federal law enforcement, in the name of national security, to search telephone, cell phone, email, and financial records without a court order. Still further, the ability of law enforcement to request business records, cell phone logs, library records, and other financial records without even the National Security Letter was too much power and not enough protection for Americans’ civil liberties. In addition, many argued that the oversight by the judiciary and Congress did not reach far enough.

Judicial challenges did surface, although these cases took time to work their way through the legal system. Several of the provisions were found unconstitutional and were struck down by federal judges, including the use of the National Security Letters to circumvent the need for court orders, as well as the warrantless searches into various records, including personal library records. Then, when the first authorization of the USA PATRIOT Act reached its first sunset period, the U.S. Congress amended the act, adding in enhanced security at seaports and new powers for the U.S. Secret Service, but did not reauthorize two provisions within Title II related to roving wiretaps and access to business records, in part because of the court rulings.

There is no doubt that the USA PATRIOT Act gave federal law enforcement more power to track down, surveil, and investigate potential terrorists and terroristic threats. Yet there is also little doubt that the ability given to the government has come at a cost of Americans’ civil liberties. Anytime government is given more power and authority, it encroaches upon the freedom of the people. Whether that encroachment is worth the price is an issue people continue to debate to this day.

The Homeland Security Act of 2002

Although President Bush had created the Office of Homeland Security within the White House, he initially opposed the idea of creating a cabinet-level bureaucracy. Members of the 107th Congress (2001–2002), however, wanted to create a more stable organization geared toward protecting the United States. A number of proposals were made by various members of Congress over the early months of 2002. One of those was by Senators Joseph Lieberman (D-CT) and Arlen Specter (R-PA) who introduced the Department of National Homeland Security Act of 2001 (S 1534) that would create a cabinet-level Department of National Homeland Security.

At the same time, in the U.S. House, Representative Richard K. Armey (R-TX) proposed the National Homeland Security Act of 2002 (HR 5005). This proposal sought to establish a Department of Homeland Security, an executive department that would be headed by a Secretary that was appointed by the President with the advice and consent of the Senate. The new department would be responsible for: (1) overseeing policies for preventing terrorist attacks within the United States; (2) passing new laws that reduce the vulnerability of the United States to terrorism; (3) minimizing the damage done during a terrorist attack and assisting in the recovery from such attacks; (4) carrying out all functions of those agencies transferred to DHS; (5) ensuring that the functions of the agencies within DHS not related directly to protecting the country are not diminished; (6) ensuring that the overall economic security of the United States is not diminished by any activities related to protecting the United States; and (7) monitoring possible connections between illegal drug trafficking and terrorism.24 Under Armey’s proposal, the new department would be comprised of the U.S. Customs Service, the Transportation Security Administration, the Federal Protective Service of the General Services Administration, the Federal Law Enforcement Training Center, and the Office for Domestic Preparedness within the Office of Justice Programs of the Department of Justice.25

The Bush administration initially resisted both proposals to develop a cabinet-level department with the responsibility of overseeing homeland security. Bush argued that the job could best be handled out of the White House Office of Homeland Security, which former Governor Tom Ridge was already at work in advancing based upon President Bush’s Executive Order. After Congressional support seemed to be gaining for the idea of a new department, the White House abruptly reversed its position and proposed its own plan. On June 6th, President Bush announced his proposal for a new Department of Homeland Security. In a speech before a joint session of Congress, Bush noted that “We’ve got to get used to the fact that they want to come again,”26 and that “… our government must be reorganized to deal most effectively with the new threats of the 21st century.”27 Bush went on to announce a plan to create a new cabinet-level department that would coordinate national efforts to prevent terrorism (see text of speech, Box 4.9). This new department would consist of entire agencies or portions of over 40 agencies and departments that already played a role in protecting the United States.

The majority of Congressional members supported the proposal for reorganizing the federal agencies to enable the country to fight terrorism more effectively. Nonetheless, there was much discussion and heated deliberations about the President’s proposal. On a number of occasions, proposals were put forth to bring the CIA, the FBI, and the National Security Agency (NSA) under the Department of Homeland Security, but after numerous debates and avid support against such plans, the legislation failed. Some Democrats in the House were worried that Bush’s plan was inadequate and possibly even counterproductive. They thought it would only result in a larger bureaucracy without making the “parts” work together more effectively. Other argued that the Bush proposal was not “budget neutral” and would inflate the cost of doing business far beyond what the current agency structure spent on an annual basis.28

BOX 4.9 President Bush’s Statement Proposing Department of Homeland Security

… So tonight I ask the Congress to join me in creating a single, permanent department with an overriding and urgent mission—securing the homeland of America and protecting the American people. Right now as many as a 100 different government agencies have some responsibilities for homeland security, and no one has final accountability. For example, the Coast Guard has several missions, from search and rescue to maritime treaty enforcement. It reports to the Transportation Department, whose primary responsibilities are roads, rails, bridges, and the airways. The Customs Service, among other duties, collects tariffs and prevents smuggling, and it is part of the Treasury Department, whose primary responsibility is fiscal policy, not security.

Tonight I propose a permanent Cabinet-level Department of Homeland Security to unite essential agencies that must work more closely together, among them, the Coast Guard, the Border Patrol, the Customs Service, Immigration officials, the Transportation Security Administration, and the Federal Emergency Management Agency. Employees of this new agency will come to work every morning knowing their most important job is to protect their fellow citizens. The Department of Homeland Security will be charged with four primary tasks. This new agency will control our borders and prevent terrorists and explosives from entering our country. It will work with state and local authorities to respond quickly and effectively to emergencies. It will bring together our best scientists to develop technologies that detect biological, chemical, and nuclear weapons, and to discover the drugs and treatments to best protect our citizens; and this new department will review intelligence and law enforcement information from all agencies of government and produce a single daily picture of threats against our homeland. Analysts will be responsible for imagining the worst and planning to counter it. The reason to create this department is not to [increase] the size of government but to increase its focus and effectiveness. The staff of this new department will be largely drawn from the agencies we are combining. By ending duplication and overlap, we will spend less on overhead and more on protecting America. This reorganization will give the good people of our government their best opportunity to succeed by organizing our resources in a way that is thorough and unified.

What I am proposing tonight is the most extensive reorganization of the federal government since the 1940s. …

Reproduced from: Bush, George W. (2002). “Address to the Nation on the Proposed Department of Homeland Security.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S. GPO.

Ultimately, after the fall mid-term elections in 2002, there was enough support and the proposal passed Congress. The House of Representatives voted in favor 299 to 121 on November 13, 2002, and the U.S. Senate passed the bill 90 to 9 on November 19, 2002. The new Department of Homeland Security was established when President Bush signed the Homeland Security Act of 2002 on November 25, 2002 (see Box 4.10).29

Former Pennsylvania Governor Tom Ridge, who was then serving as the Director of the Office of Homeland Security, was nominated to serve as the first Secretary of Homeland Security. Once confirmed by the U.S. Senate, he was charged with carrying out the organizational planning that ultimately joined more than 179,000 federal employees from 22 existing federal agencies (often in multiple components from one agency) to report to one single, cabinet-level organization. The Department of Homeland Security officially opened on January 24, 2003.

BOX 4.10 Remarks on Signing the Homeland Security Act of 2002, November 25, 2002

The new department will analyze threats, will guard our borders and airports, protect our critical infrastructure, and coordinate the response of our nation to future emergencies. The Department of Homeland Security will focus the full resources of the American government on the safety of the American people …

Dozens of agencies charged with homeland security will now be located within one Cabinet department, with the mandate and legal authority to protect our people. America will be better able to respond to any future attacks, to reduce our vulnerability and, most important, prevent the terrorists from taking innocent American lives.

The Department of Homeland Security will have nearly 170,000 employees, dedicated professionals … When the Department of Homeland Security is fully operational, it will enhance the safety of our people in very practical ways. First, this new department will analyze intelligence information on terror threats collected by the CIA, the FBI, the National Security Agency, and others … Second, the department will gather and focus all our efforts to face the challenge of cybeterrorism and the even worse danger of nuclear, chemical, and biological terrorism. This department will be charged with encouraging research on new technologies that can detect these threats in time to prevent an attack. Third, state and local governments will be able to turn for help and information to one federal domestic security agency, instead of more than 20 agencies that currently divide these responsibilities. This will help our local governments work in concert with the federal government for the sake of all the people of America. Fourth, the new department will bring together the agencies responsible for border, coastline, and transportation security. There will be a coordinated effort to safeguard our transportation systems and to secure the border so that we’re better able to protect our citizens and welcome our friends. Fifth, the department will work with state and local officials to prepare our response to any future terrorist attack that may come. We have found that the first hours and even the first minutes after the attack can be crucial in saving lives, and our first-responders need the carefully planned and drilled strategies that will make their work effective.

Reproduced from: Bush, George W. (2002). “Remarks on Signing the Homeland Security Act of 2002.” Public Papers of the Presidents of the United States. Washington, D.C.: U.S. G.P.O.

Homeland Security Presidential Directives

As previously mentioned, President George W. Bush, not long after the creation of the Office of Homeland Security, created the President’s Homeland Security Advisory Council and Senior Advisory Committee for Homeland Security. He did this through an Executive Order 13260, which he signed on March 19, 2002.30 This was the first of a number of presidential executive orders Bush signed related to homeland security. The next was an Executive Order 13311, pertaining to homeland security information sharing, and then another entitled Strengthening the Sharing of Terrorism Information to Protect Americans (#13356), both of which allowed intelligence agencies to share information related to potential domestic terrorism threats with other federal agencies.31Previously, intelligence agencies generally could not share this information with other federal agencies due to its high-level classification. Finally, Executive Order 13407, Public Alert and Warning System, created the often ridiculed and derided color-coded warning system that signified to the U.S. public the current terrorist threat level.32 These executive orders, which have the full force of law, are a means by which the president can direct certain officers and agencies within the executive branch of government. In these instances, President Bush was directing federal agencies on new practices they would implement, such as high-level information sharing, the creation of a Homeland Security Advisory Council, and the use of a public alert and warning system.

© Joshua Roberts/AFP/Getty Images.

There is another means by which presidents can also issue directives to executive branch officers and agencies, and that is through what are known as presidential directives. These directives are a form of executive orders, but are usually created through the advice and consent of a particular council. In the past, the main council for these directives has almost always been the National Security Council, and the topics have been related to national security. Bush wanted to develop the same relationship between the president and his Homeland Security Council as existed between the president and the National Security Council. Therefore, like the issuance of National Security Presidential Directives, Bush would issue Homeland Security Presidential Directives. During his two terms in office, President Bush issued 25 such directives (see Box 4.11).

KEY TERM

Homeland Security Presidential Directives—presidential executive orders that are focused on Homeland Security and advise the federal bureaucracy on administrative requirements the president wants implemented.

The first two Homeland Security Presidential Directives (HSPDs) were issued on October 29, 2001 and were related to the organization and operation of the Homeland Security Council (HSPD-1) and Combating Terrorism Through Immigration Policies (HSPD-2). Additional Homeland Security Presidential Directives included the management of domestic incidents (HSPD-5) and how federal agencies needed to prepare for certain emergencies (HSPD-8). These two directives, in particular, became critical to the development of the National Incident Management System (later called the National Incident Management Framework), which was focused on developing a national response to both natural disasters and terroristic attacks, and the creation of the Incident Command System (ICS) as the primary means for carrying out such responses at the federal, state, and local levels. Other Homeland Security Presidential Directives were related to domestic nuclear detection (HSPD-14), maritime security (HSPD-13), and the last Bush-issued directive was related to security in the Arctic region (HSPD-25). Several of these HSPDs remain classified, due to the nature of the directive, but the majority are unclassified and available to the public.

BOX 4.11 Homeland Security Presidential Directives

HSPD-1	Organization and Operation of the Homeland Security Council Oct. 1, 2001
HSPD-2	Combating Terrorism Through Immigration Policies Oct. 1, 2001
HSPD-3	Homeland Security Advisory System Mar. 11, 2002
HSPD-4	National Strategy to Combat Weapons of Mass Destruction Dec. 11, 2002
HSPD-5	Management of Domestic Incidents Feb. 28, 2003
HSPD-6	Integration and Use of Screening Information Sep. 16, 2003
HSPD-7	Critical Infrastructure Identification, Prioritization, and Protection Dec. 17, 2003
HSPD-8	National Preparedness Dec. 17, 2003
HSPD-9	Defense of United States Agriculture and Food Feb. 3, 2004
HSPD-10	Biodefense for the 21st Century Apr. 28, 2004
HSPD-11	Comprehensive Terrorist-Related Screening Procedures Aug. 27, 2004
HSPD-12	Common ID Standard for Federal Employees/Contractors Aug. 27, 2004
HSPD-13	Maritime Security Policy Dec. 21, 2004
HSPD-14	Domestic Nuclear Detection Office Apr. 15, 2005
HSPD-15	U.S. Strategy and Policy in the War on Terror (Classified) Classified
HSPD-16	National Strategy for Aviation Security Jun. 22, 2006
HSPD-17	Nuclear Materials Information Program Aug. 28, 2006
HSPD-18	Medical Countermeasures Against Weapons of Mass Destruction Jan. 31, 2007
HSPD-19	Combating Terrorist Use of Explosives in the United States Feb. 12, 2007
HPSD-20	National Continuity Policy Apr. 4, 2007
HSPD-21	Public Health and Medical Preparedness Oct. 18, 2007
HSPD-22	Domestic Chemical Defense Classified
HSPD-23	Cyber Security and Monitoring Jan. 8, 2008
HSPD-24	Biometrics for ID and Screening to Enhance National Security Jun. 5, 2008
HSPD-25	Arctic Region Policy Jan. 9, 2009

Reproduced from: Bush, George W. (2001-2009). Homeland Security Presidential Directives.

Chapter Summary

The terrorist attacks on September 11, 2001 called for an American response both overseas and domestically. In the immediate aftermath, to more effectively deal with future attacks as well as natural disasters, the President created the Office of Homeland Security in the White House, issued executive orders and Homeland Security Presidential Directives. The U.S. Congress passed the USA PATRIOT Act of 2001 and the Homeland Security Act of 2002, the former a wide array of laws giving federal law enforcement more investigatory powers for purposes of anti-terrorism and counter-terrorism, while the latter set in motion the creation of a new cabinet-level Department of Homeland Security. Once the new Secretary of Homeland Security, Tom Ridge, was confirmed, the new department came into existence and began consolidating all of the agencies and agency components that made up the new department. This represented the largest organizational shift in federal bureaucracy since World War II.