Is Congress failing on Homeland Security oversight?

Introduction

Editor’s Note, Sept. 11, 2013: Twelve years after the tragic 9/11 terrorist attacks, many of the security proposals from a special federal commission have been implemented — but one, conspicuously, has not. In an op-ed piece in this morning’s New York Times, Thomas Kean and Lee Hamilton, the chairs of the 9/11 Commission, acknowledge the progress since their 2004 report, but plead for action on an agenda item still outstanding. “Nine years after the 9/11 Commission made its case, our country is still not as safe as it could and should be,” they say. “Though the vast majority of our recommendations have been followed, at least in part, Congress has not acted on one of our major proposals: to streamline the way it oversees homeland security.” In 2009, the Center embarked on an in-depth examination of the tortured efforts on Capitol Hill to address the problem. Here’s what we found:

Tom Ridge, the Department of Homeland Security’s first secretary, testified before the 9/11 Commission on a May morning in 2004. Ridge spoke before a hall packed with emotional New Yorkers, about two miles from the site of the World Trade Center. His subject, however, was Washington.

When Commissioner Tim Roemer asked for suggestions on improving DHS, Ridge brought up an institution in which both he and Roemer had served: Congress. It would be helpful, Ridge said, if Congress took a look at the number of committees that had power over DHS.

“I think we could be even more effective in what we’re doing,” he began, “if there was some means of reducing, frankly, the multiple layers of interaction that we encounter every single day.”

“Well, sir, you’re very polite about it,” Roemer responded. “It is absolutely absurd that Congress would require you to report to 88 different subcommittees and committees when we’re supposed to be fighting al-Qaeda.”

Five years ago next week, the 9/11 Commission, a congressionally mandated panel investigating al-Qaeda’s 2001 attacks, made 41 recommendations on such topics as improving screening at airports and creating a director of national intelligence. Commissioners say Congress and the executive branch have enacted 80 to 90 percent of their suggestions. The recommendation that Congress “create a single, principal point of oversight and review for homeland security” is a notable exception.

While insisting on changes in the executive branch, Congress did not demand that its members make the same tough choices. Under pressure from powerful committee chairs, congressional leaders allowed a system of widely distributed oversight to remain largely intact. As a result, the Department of Homeland Security is still coping with an extraordinary number of demands from Capitol Hill, which are tripping up a fledgling organization. And the crazy quilt of oversight is making it difficult for Congress to provide cogent guidance on budgeting, organization, or priorities for a department still struggling on all those fronts.

“When you have oversight conducted by numerous committees and subcommittees you tend not to get the rigor you need in oversight,” 9/11 Commission vice-chair Lee Hamilton told the Center last week. “The more [committees] you have engaged in the topic, the less robust it is. We think the executive branch needs very rigorous, independent oversight that can only really come from the Congress.”

Created in 2002, DHS fused together an unwieldy collection of 22 agencies ranging from the Secret Service and Coast Guard to the Federal Emergency Management Agency. The department is still struggling to manage its myriad responsibilities: With a budget of more than $40 billion and more than 200,000 employees, DHS must accomplish missions as disparate as screening airplane passengers, enforcing border security, processing immigration applications, protecting the president, and responding to terrorist attacks and natural disasters.

In 2007 and 2008, DHS officials attended more than 370 hearings and gave more than 5,000 briefings to staffers and members of Congress representing 108 committees, according to department records. No other agency spends as much time on Capitol Hill: Officials at Veterans Affairs, a department of comparable size and budget, testified at half the number of hearings, 183, before just two committees, and gave 413 briefings over the same time period.

“It takes a lot of time away from what you’re trying to accomplish,” says David Paulison, the administrator who fought to rebuild FEMA after the disastrous 2005 hurricane season. “I understand that Congress has the right to know what’s going on and the right to ask questions. But there are just too many committees.”

Others put it less delicately. A New York Times editorial late last year called the current situation “a comedy that invites fresh national tragedy unless congressional leaders finally resolve to streamline down to a few dedicated panels.”

In response to the 9/11 Commission report, Congress did designate a committee in each house as the primary point of oversight for some DHS functions, reforms that congressional leaders described as sweeping, but that fell far short of the commission’s vision. Committees continue to joust over slices of the department, and neither Senate Majority Leader Harry Reid, a Nevada Democrat, nor House Speaker Nancy Pelosi, a Democrat from California, has shown any interest in making the political compromises that further reorganization would demand.

A house divided

Secretary Ridge was the first person to experience the problem directly, after taking office in January 2003. But before DHS’ creation and even before 9/11, the Washington establishment had doubted Congress’ ability to oversee homeland security. Two earlier commissions — the 2000 Gilmore Commission on America’s capacity to respond to a major terrorist attack and the 2001 U.S. Commission on National Security/21st Century — had suggested a special congressional committee to coordinate homeland security efforts. When Senator John McCain, the Arizona Republican, and Senator Joe Lieberman, then a Connecticut Democrat, drafted the 2002 bill authorizing the National Commission on Terrorist Attacks Upon the United States — the 9/11 Commission — they required that it examine congressional oversight.

The 9/11 Commission didn’t spend much time on the congressional issue, focusing instead on failures of diplomacy, intelligence, and law enforcement, and relying on the long experience of members like Hamilton to guide its thinking on congressional organization. The recommendation that made it into the final report — the call for “a single, principal point of oversight” — required little debate.

What was uncontroversial for the Commission, however, would prove contentious in Congress. Consolidating oversight for homeland security would require taking away turf — “jurisdiction,” officially — from other committees.

In 2004, the leaders of committees standing to lose jurisdiction over homeland security — a group that included tough infighters like Representative Don Young and Senator Ted Stevens, both Alaska Republicans — opposed the 9/11 Commission’s recommendation. They argued that an increased focus on security within the current committee structure was already producing better results.

Since 2003, Representative Christopher Cox, a California Republican, and Representative Jim Turner, a Democrat of Texas, had led a temporary house committee on homeland security, formed to oversee implementation of the 2002 legislation that created DHS. The two representatives wanted to make their committee permanent, despite opposition from rival chairs, nine of whom sat on their panel. Cox worked well across party lines with Turner, according to John Gannon, the committee’s first staff director; but that harmony did not extend to the other Republican chairmen on the committee. “Some chairmen were singularly unhelpful at times,” Gannon says.

At four hearings on the committee’s future, the first in May 2003, the last in March 2004, most witnesses cautiously supported Cox and Turner. Only the last panel, featuring high-ranking representatives of committees from Agriculture to Judiciary, disagreed.

“There is no substitute for expertise, institutional knowledge, and experience,” said Representative John Mica, a Florida Republican, of the Transportation and Infrastructure Committee. “The standing committees are the only place where that depth of knowledge and experience exists. The stakes are too high to cast them aside.”

Although Speaker Dennis Hastert, a Republican from Illinois, threw his support behind a permanent homeland security committee in November 2004, its fate was undecided until the night before the opening of the 109th Congress. For a month, Republican chairmen like Young (Transportation and Infrastructure), Wisconsin’s James Sensenbrenner (Judiciary), and Joe Barton of Texas (Energy and Commerce) had fought to cripple, if not eliminate, the fledgling committee. Only after a late-night session on January 3, 2005, where these antagonists secured prime turf for themselves, did the House Republicans agree on a plan.

The permanent House Homeland Security committee they created ended up with what one congressional observer called “fuzzy jurisdiction.” The Transportation and Infrastructure panel retained significant power over FEMA and the Coast Guard, for instance, and to this day, the Homeland Security committee’s responsibilities overlap significantly with other committees, particularly those whose chairs opposed the new panel’s creation.

‘The ugliest and lowest point’

Over in the Senate, following the 9/11 Commission report, Senator Harry Reid and Senator Mitch McConnell, a Kentucky Republican, the two parties’ whips, were given two months to negotiate which committee would oversee DHS. One committee in particular had its eye on the department: the chair of the Governmental Affairs committee, Senator Susan Collins, a Republican from Maine, had been holding hearings on DHS nominations, budgets, and grant programs, while making the case to Senate leadership that, when the time came, her committee should be granted jurisdiction over the new department.

After leading a few unproductive meetings of high-powered senators like Ted Stevens and Dick Durbin, a Democrat from Illinois, Reid and McConnell retreated to produce a resolution on their own. Their offering handed jurisdiction over most of DHS to Collins and the re-named Homeland Security and Governmental Affairs Committee. The Finance Committee kept revenue functions of the Customs Service, and the Commerce committee, which Stevens would lead in 2005, retained power over the Transportation Security Administration and the Coast Guard.

Michael Bopp, then Republican staff director for the Governmental Affairs committee, remembers the debate on Reid and McConnell’s resolution as “by far the ugliest and the lowest point of my career on the Hill.” He was in his office when he received a call from the Senate cloakroom, telling him he’d better get down there. The resolution was on the floor, and the ranking member of the Finance committee, Senator Max Baucus, a Democrat of Montana, was offering an amendment to take back still more DHS customs functions. By the time Bopp had rushed to the floor, the amendment had passed. One of McConnell’s aides apologized to him, saying it was too late to do anything about it.

Once the Baucus amendment passed, the flood gates flew open, and it was clear that neither Reid nor McConnell would go to the mat for their plan. Collins and Lieberman, then ranking Democrat for Governmental Affairs, took to the floor to argue for streamlining jurisdiction — keeping hold of their new turf — but over the next two days, a parade of testy committee leaders used amendments to take back jurisdiction they would have relinquished under the resolution’s original terms. Their sense, as Stevens put it: “We didn’t need the 9/11 Commission to tell us what to do.”

When the resolution finally passed 79-6 on Oct. 9, 2004, the new Homeland Security and Governmental Affairs Committee had lost jurisdiction over major chunks of DHS — Customs, flood insurance, the Secret Service, immigration, the Coast Guard and the TSA.

“It was like no other bill,” says Bopp. “The coalitions were completely different. They weren’t geographical, or partisan, or any of the normal ways that Congress divides up. It was purely about committee jurisdiction.”

Reid and McConnell called the effort a success, and an advisor to Reid told the Center that the changes made “were the most substantial reforms of congressional oversight in years.” Collins, chair of Governmental Affairs, was visibly upset, but as Reid said during the floor debate, “We have people here grousing from 10 different committees saying we gave [the Governmental Affairs committee] too much. … If people think we did nothing, why have I been berated the last few days about: How could you do this? How could you take this from me?”

The new order

Estimates on the number of committees overseeing DHS have always varied, but no one is arguing that the Capitol Hill reshuffling substantially reduced the number of panels asserting some claim on DHS. “As a practical matter, any committee that has any part of jurisdiction is going to try to assert it, in order to get a shot on the news back home,” says Representative Peter King of New York, ranking Republican member of the House Homeland Security committee. “Congress is like kids in school; you have to have rules.”

In 2005, after the reforms, the bickering over jurisdiction moved to the back rooms of Congress, and top aides spent hours fighting for “primary referral” of legislation. Small changes in a bill’s language can change which committee has power over it: when the House Energy and Commerce committee introduced a shorter version of chemical security legislation originally drafted by the Homeland Security Committee, the absence of the word “terrorism” meant it was referred to the energy and commerce panel. (The House Homeland Security committee took up the issue again this spring, and the bill that committee passed is now in the hands of the energy and commerce panel.) In 2006, a port security bill was held up for months when three different Senate committees — Commerce, Finance, and Homeland Security — pounced on the issue.

“We had almost identical bills for port security coming out of each committee,” says Ken Nahigian, former chief counsel to the Commerce Committee. “For 30 straight days we were locked up in a room from 7 a.m. to 1 a.m. arguing about jurisdiction.”

As the 110th Congress began in January 2007, eight different full committees in the House had a jurisdictional stake in H.R. 1, a bill implementing additional 9/11 Commission recommendations, most of which primarily affected DHS. Under the normal referral process, each committee would have had the chance to change the legislation or formally waive its right to referral, perhaps after striking a deal to have certain provisions included. The bill reached the House floor only because newly minted Speaker Pelosi bypassed that procedure and designated the House Homeland Security Committee as the lead committee. Her action was interpreted as a way to unofficially recognize the House homeland security panel’s primary role without fighting a turf battle.

Even so, the committee had to negotiate with representatives of the other seven committees at meetings that could approach one hundred people.

This year, the House Homeland Security Committee put aside its long-stated desire to pass an authorization bill for DHS as a whole in favor of a piecemeal approach. The first step is a TSA authorization bill, which passed the House in early June. This bill was referred only to the Homeland Security committee.

Aides say that they’re spending less time fighting over jurisdiction these days, perhaps because it’s clear nothing will change in the near future. “A number of other committees continue to scrutinize aspects of protecting the homeland — and they should, as I don’t think there are too many eyes on these issues,” said that advisor to Reid who considers the 2004 changes substantial. “We rely heavily on the leadership of Chairman Lieberman and Ranking Member Collins and their committee staff … to shape the oversight agenda.”

In the House, the rules for the current Congress granted the Homeland Security committee more leeway to conduct oversight, but no new legislative powers. A spokesperson for Pelosi reiterated that “the primary responsibility for the Department of Homeland Security falls on the House Committee on Homeland Security.”

“We spent the better part of the last two plus years fighting for more jurisdiction,” Lanier Avant, the staff director of the House Homeland Security Committee, explained recently. At the end of 2008, Representative Bennie Thompson, a Mississippi Democrat and the panel’s chair, submitted a proposal to expand the committee’s legislative jurisdiction. “The truth is that when we sat down with committee chairmen, and staff directors — there were about 15, 16 of us in a room on a December night for probably four or five hours — if you look around the room and look at other committee chairmen, you say well, this is what I want to take from you, it really doesn’t happen like that,” Avant said.

‘The secretary better come testify’

Congressional leaders might have considered the 2004 changes significant accomplishments, but Thomas Kean and Lee Hamilton, the chair and vice-chair of the 9/11 Commission, later called them “halfhearted reforms, followed by steps backward.” Hamilton told the Center last week that “we don’t think sufficient progress has been made.” For DHS staffers the reforms had little impact. In 2005, DHS officials attended essentially the same number of hearings as in 2004 (166 versus 165) and provided more than 300 additional briefings. In 2006 and 2007, these numbers only increased, and in 2008, although the number of hearings dipped to 146, the number of briefings continued apace.

“It’s unbelievable,” says Don Kent, a former assistant secretary for legislative affairs. “But if you’re on the Hill, it’s not a problem for you. You just want your briefing and your hearing.”

And, in Kent’s experience, congressional staffers want to have the highest-ranking person possible there. “We got a lot of: ‘The secretary better come testify,’” he says.

Ridge, the first DHS secretary, did just that; he testified at eight hearings between January and May of 2003, and another eight between February and June of 2004. Asa Hutchinson, the undersecretary for border and transportation security, testified 25 times between January 2003 and August 2004, including six hearings in March 2004.

“It does get to the point that it is distracting to other objectives that you’re trying to achieve,” Hutchinson says.

In the last Congress, David Paulison, the FEMA administrator, testified before 12 different committees and subcommittees. Sometimes the interaction between the Hill and DHS seemed to border on the absurd. Kent remembers receiving a subpoena threat for the deputy secretary for a hearing in the Small Business committee about post-Katrina recovery.

In a typical week, DHS might handle more than 40 briefings, whether there’s a hearing scheduled or not. Some weeks, the department testifies at multiple hearings and provides upwards of 50 briefings. Top officials are careful to emphasize that they consider working with Congress a necessity and a privilege but say responding to that volume of requests consumes too much time. DHS estimates that the average testimony takes about 60 hours to prepare but that, in some cases, a single hearing can require more than 200 hours of preparation.

“The pressure really was on the men and women on the staff level, who were briefing an assistant secretary or answering questions when there was real work to be doing on the budget or on the mission,” says one former official.

Particularly frustrating are the thousands of “questions for the record” sent over after hearings. DHS gets more than 3,000 such questions each year, and while some require little more than a yes-or-no answer, others demand more thorough responses.

“It doesn’t take a long time to write questions and push the send button, but it takes time to answer those questions in a thoughtful way,” says Colonel Bob Stephan, a former assistant secretary for infrastructure protection. “I had a whole staff of people dedicated to being term paper writers.”

Colonel Stephan actually found that for the most part the amount of congressional oversight of his area was about right. But many others remain skeptical. Since the 111th Congress kicked off in January, new Secretary Janet Napolitano has appeared eight times. When Peter King brought up the oversight issue with Napolitano, she was polite, but did cite the number of hearings department officials testified at during the last Congress — 269 in the House alone. “While it would be presumptuous of me to recommend to Congress how it be organized,” she said, “I think that’s a fact that is relevant.”