The Department of Homeland Security (DHS) is a massive and confusing organization with an immense impact on American civil liberties, which is why it will be the focus of this week’s article. First, I’ll give a general background of what exactly the DHS is and how it was created. Following that, I argue that the large size of the DHS, its vague mission, and lack of oversight have led to extensive violations of American privacy rights. In particular, “fusion centers” that collect and share information on Americans have continually violated rights protected under the Privacy Act of 1974, and arguably infringe upon freedoms protected by the First and Fourth Amendments.
What is the Department of Homeland Security?
The DHS was created under the Bush administration with the passage of the Homeland Security Act of 2002. On the day of its creation, then President Bush announced that the DHS would coordinate efforts for protecting Americans, giving the justification that, “We recognize our greatest security is found in the relentless pursuit of these cold-blooded killers [terrorists].” He goes on to say that, “because terrorists are targeting America, the front of the new war is here in America.” Today the official mission of the DHS reads: “The vision of homeland security is to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards.” There are five “core missions” that include, “prevent terrorism and enhancing security, secure and manage our borders, enforce and administer our immigration laws, safeguard and secure cyberspace, and ensure resilience to disasters.”
Obviously this covers a lot of territory. The DHS is so enormous that I can only hope to scratch the surface of what it does in this article. Its website reports that it directly employs over 240,000 people. According to the White House, this makes the DHS the third largest federal agency after the Department of Defense and Veterans Affairs. To put this in perspective, the DHS has over four times the number of employees as Google. Upon its creation, it engulfed 22 other government organizations, which have since been combined to just 8 agencies and many other smaller organizations. Some surprising agencies among this list include the Federal Emergency Management Agency (FEMA), the Federal Law Enforcement Training Center (FLETC), the United States Secret Service (USSS), and several research-oriented organizations.
The very logo of the DHS embodies its intentional size and its direct reach throughout multiple agencies. The first Secretary explained, “The eagle’s wings break through the inner circle into the outer ring to suggest that the Department of Homeland Security will break through traditional bureaucracy and perform government functions differently.” And indeed, the creation of the DHS was not so much creating one department, but rather the conglomeration of many government agencies and the furthering of their collective power.
The DHS also contracts out many private companies for research, surveillance, training, commercial products, and much more. The DHS’s own budget report doesn’t seem to give an exact breakdown of private contract spending, but a third-party report found that between 2004 and 2011, about 97 of the 381 billion in 2011 USD publicly reported was for private contracts.
Perhaps most shocking in its scope is some wording in the original law passed in 2002 that established the DHS. For instance, it doesn’t just allow the DHS to commandeer labs in private companies and universities or to establish offices in private organizations; it requires that the Secretary get involved with as many organizations “as practicable.” A quick search at several universities reveals that the DHS both uses their labs and hosts special degree programs. Most large hospitals also host the DHS’s labs. Additionally, a simple job search of “The Department of Homeland Security” on sites like Indeed brings up dozens of positions through private organizations. The DHS is absolutely omnipresent in American society.
This still does not give a clear picture of what the DHS does, and this is partially because it is so large and has such an all-encompassing, vague mission. The DHS patrols the borders as the Coast Guard, screens passengers as the Transportation Security Administration, protects the president as the US Secret Service, conducts scientific research through the Science and Technology Directorate, and does anything under the sun that could potentially be related to terrorism domestically. But this broad and undefined theme of terrorism has led the DHS to get involved in less obviously terrorist-related fields. One author dubs the DHS the “department of everything”—noting that it has issued warnings about deep-frying turkey, given warnings about dryer fires, and ensured proper licensing for tee-shirt sales at the 2015 Super Bowl. Perhaps the “department of everything” is the best way to describe the DHS.
You might be thinking this is no big deal—after all, how could it be bad that there’s a large security apparatus in place? However, while there’s certainly nothing wrong with maintaining domestic security, the kinds of powers granted to the DHS are worrisome. Essentially, the agencies absorbed into the DHS are granted special powers for anything relating or even potentially relating to terrorism as per the wording by law. That’s a broad caveat. The fact that this kind of power is granted to a broad range of already existing government bodies, rather than to a narrowly defined, new department, is even more worrisome. This is especially so for law enforcement and intelligence related agencies. In effect, the creation of the DHS was simply the conglomeration of much of the government that already existed, and it just greatly empowered many of those agencies for surveillance and information gathering.
Just take a look at “fusion centers” as one terrifying example. The DHS reports that, “Fusion centers operate as state and major urban area focal points for the receipt, analysis, gathering, and sharing of threat-related information between federal, state, local, tribal, territorial (SLTT), and private sector partners.” In practice, these are run by state or local police departments, and they are allowed to collect and share “relevant” information with every level of the government and private companies. This information sharing includes the CIA, the FBI, and the military. The DHS currently reports that 53 states and territories are operating 78 fusion centers.
In 2007, the ACLU published a report warning of the potential for civil liberty violations from fusion centers. The report listed several worries regarding these centers: ambiguous lines of authority, private sector participation, military participation, data mining, and excessive secrecy.
Unfortunately, the past few years have only confirmed the ACLU’s predictions. One fusion center in 2009 marked several universities as potential hubs of terrorism, and another listed third-party supporters and Ron Paul supporters as terrorists. In that same year, another center listed the Council on American Islamic Relations and an anti-war activist group as potential terrorist threats, recommending that local law enforcement keep tabs on them. In a more recent case, fusion centers across the country were found to be watching various Occupy movements, or even just groups planning on visiting an Occupy movement.
A Senate report late in 2012 found fusion centers to be not only ineffective at stopping terrorism, but they found that they often violate privacy rights of Americans. The scathing report says, “The Subcommittee investigation found that the fusion centers often produced irrelevant, useless or inappropriate intelligence reporting to DHS, and many produced no intelligence reporting whatsoever.” It goes on to list problems such as misuse of funds for televisions, purposeful failures to report documents, irrelevance, and backlogs.
Some of the less worrisome reports that should never have reached review include topics such as suspicious men fishing, a shoplifter with an expired visa, and a man waiting under a bridge. The more worrisome reports infringe on civil liberties. For example, one report covered a circulation called, “Ten Book Recommendations for Every Muslim,” despite none of the books calling for any kind of criminal activity. Another covered a motorcycle club’s leaflet on how to appropriately interact with police, even though it encouraged following the law. Two other reports expressed concern over speakers at mosques, one of which was on the topic of positive parenting. None of these cases had any evidence that there was a connection to criminal activity or terrorism.
The Senate report also found that the DHS repeatedly failed to reprimand its officers for these violations, with “informal counseling” serving as the most severe reaction from the administration. The report found that these bad information collection practices and lack of disciplinary action were systematic, and partially the result of poor training. The officers only receive 5 days of training, with 2 hours dedicated to civil liberties and 2 hours for privacy. There is no test or certification. Even more worrisome, many of the repeat offenders were found to be high ranking employees.
Fusion centers provide the clearest example of civil liberty violations, but they are by no means the only branch of the DHS infringing on the rights of Americans. In 2007, another intelligence gathering program under the DHS—called ADVISE—was shut down for violating privacy protections and because it was deemed to be wasting funds. For over two years the DHS ran pilot tests of the program using the data of real people, but without any regard for privacy protocols. ADVISE was also found to mistakenly associate people with criminal activity and terrorism. Although it is hopeful that the program was internally reviewed and closed down as a result, it is not at all hopeful that it operated for over five years. What’s more, this was only one of 12 such programs, and the other 11 have not been shut down.
In another concerning privacy case in 2006, the DHS—through Customs and Border Protection—purposefully opened a history professor’s mail without a warrant. Even more disturbing was the official response, saying, “All mail originating outside the United States Customs territory that is to be delivered inside the U.S. Customs territory is subject to Customs examination.” The DHS did not deny or condemn the case, but rather asserted that it has the right to read your private mail if it’s coming from another country. This implies they are reading far more mail without a warrant than just this history professor’s—and they’re openly getting away with it.
American Rights Violated
These are just some of the cases that are publicly known, and these are enough to show a clear pattern of violations of several of the rights granted to Americans. To begin, let us take a quick look at the First and Fourth Amendments from the Bill of Rights:
Amendment 1: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Amendment 4: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Admittedly, the term ‘abridging’ in the context of the First Amendment is left rather ambiguous. However, a case could be made that, if people know they will be watched by law enforcement and potentially put on a terrorist watch list for simply expressing their First Amendment rights, they may be far less willing to do so. This seems to be especially the case for controversial protests, like the Occupy movement or anti-war protests. Many of these people were wrongly placed on terrorist watch lists merely for lawfully exercising their freedoms of speech, press, assembly, or petition. Perhaps even more concerning is the number of speakers at mosques and Muslim organizations that were wrongfully placed on terrorist watch lists, most likely due to religious profiling. That will certainly not encourage people to feel free to worship how they please.
The violations of the Fourth Amendment are far more concrete. Clearly, opening mail without a warrant infringes on your right against unreasonable searches and seizures. Additionally, the wholesale collection and sharing of electronic data between every level of government and private companies certainly should count as an unwarranted search.
While these amendments are somewhat vague, the DHS has also violated far clearer laws. The Privacy Act of 1974 (full law) enumerates many rights of American citizens and permanent residents against the federal government in regards to information collecting, storing, and sharing. Most notably, no federal agency can lawfully collect information about Americans simply for expressing their First Amendment rights. Even for information that is allowed to be collected, say for voluntary surveys, the person in question must be told that their information is being collected. Additionally, that person is allowed to request whatever information the agency has on them, and they are allowed to petition for amendments to the information. The federal agency also must have strict guidelines on how that information is collected and stored, and it must publicly announce information collecting programs. It must also report to the federal government every year on its activities.
The DHS has systematically violated all of these requirements, especially through fusion centers. The Senate report mentioned earlier found many cases in which people were watched simply for expressing First Amendment rights—a clear violation of this law. None of the subjects of surveillance were informed. Even for reporting information directly to the federal government on its activities, they found that the DHS systematically lied or suppressed internal reports on these civil liberty violations. Over one-third of its documents that were to be reported got buried by upper management because they were irrelevant, and 40 of those particular documents were buried for showing infringements on civil liberties.
These cases and many more are enough to question the justification for and the utility of the DHS, especially for these kinds of overly prying programs. Overall, the DHS is far too large, has too vague of a mission, and receives far too little oversight. This empowers lots of smaller agencies and local police departments across the country to interpret and enforce the DHS’s vague mission as they please. Lots of these interpretations lead to violations of civil liberties—as we have seen—and they receive no correction because of the general lack of oversight.
What’s more, despite a Senate report that highlights these problems and many clear cases of violations of civil liberties, these programs continue to receive funding and support from our Congress and President. For instance, on February 2nd of 2015, President Obama gave a speech to the DHS praising their work as essential to U.S. security and to the U.S. economy, while calling on the Republican Party to pass its funding for the year. Our government continues to give its consent to these programs by green lighting its funding every year.
You should care about all of this first and foremost because the DHS is responsible for numerous civil liberty violations. If you ever want to protest, write about controversial topics, have any kind of public personality, or even just be a speaker at your local mosque, you might be monitored or placed on a terrorist watch list. That itself is an egregious violation of our First Amendment and Privacy Act of 1974 rights. Similarly, if you don’t want your mail being read without a warrant or your information being collected without a warrant or privacy controls, you should care about this.
You should also consider that the president appoints the secretary of the DHS, who then appoints all leadership in the DHS. Please think about this in the context of our current election cycle. Do you trust the next president with this kind of power, or other presidents down the line?
Additionally, your local police chief is given all of the powers granted to fusion centers. Think about that. Think about whether you trust your police department. Now think about whether you trust them to properly interpret what is appropriate for monitoring, not to abuse that power, and not to profile. You are also trusting your police department with sharing your information at every level of government and with the private sector.
Finally, if you don’t care about any of that, you should at least care that the DHS is costing you, as a tax payer, lots of money. The Senate report found many cases of wasteful spending due to a lack of oversight, including the purchase of sports cars, unnecessary surveillance equipment, and dozens of flat-screen televisions. The report also found that the DHS is unable to determine how much money they spent on what, and whether or not it was effective. They used FEMA to channel money into fusion centers, and the DHS’s own estimate for money spent this way from 2003-2011 ranges from $289 million to $1.4 billion. That’s an absurdly inaccurate range.
It is for these reasons that I advocate either abolishing the DHS entirely, or at the very least seriously reforming the DHS in order to provide much stronger oversight, reduce its size, and narrow its mission.