Lawfare has from time to time allowed me, as a longtime contributor, to use this space to acknowledge the anniversary of the Sept. 11, 2001, terrorist attacks, and reflect on some aspect of the 9/11 Commission Report, the definitive accounting of the federal government’s failure to prevent the attacks on New York and Washington, D.C., formally titled the “Final Report of the National Commission on Terrorist Attacks Upon the United States.” The 9/11 attacks were formative for me: I started that day working on counterterrorism matters at my desk at Main Justice, and by midmorning was dispatched to the FBI’s Strategic Information and Operations Center across the street to stand up a temporary station for Department of Justice lawyers handling emergency foreign intelligence surveillance applications. In the decade since leaving government service, I’ve often returned to the report each September, before a semester of teaching begins, to cull from its narrative and recommendations observations about the United States’s present national and homeland security challenges.
The report was specific in its remit to reshape government to address the terrorism threats that existed at the time, but its lessons withstand the passage of time. When it was issued in 2004, the report served two purposes: one, to provide a definitive factual narrative of the events and circumstances that led up to the attacks, and two, to provide recommendations about how to structure the federal government to protect against a future terrorist attack. But as time goes on, the report has come to serve an important third role: as a warning to the American public and its leaders about the importance of addressing emerging threats before it is too late. As I write this year’s reflection—sitting in our home’s dining room, which I’ve spent the weekend converting to a combined home office and middle school homeroom because schools and offices remain mostly shuttered due to the federal government’s failed response to the coronavirus—I have three concurrent, interrelated observations to share. The first concerns the pandemic; the second, the Department of Homeland Security and its continued viability; and the third, the capacity of the U.S. national and homeland security community to address emerging threats and challenges.
The Coronavirus Pandemic
The coronavirus global pandemic and the 9/11 attacks are both catastrophic events in the modern life of the United States—but other than that, they bear few similarities, including when it comes to the government response.
For one, the death tolls are wildly incomparable. On 9/11, 2,977 Americans died; additional first responders have died slowly over the past 19 years from cancer and respiratory illnesses caused by the toxic air surrounding the crash and wreckage sites. As of this writing, more than 185,000 Americans have died within the past six months from COVID-19, the respiratory disease caused by the novel coronavirus; a new estimate warns that the U.S. may reach 400,000 deaths from the disease by year’s end, a soul shattering prediction. 9/11 was an intelligence failure; the potential for a pandemic was warned about within the government for years, so much so that the federal government had designed a playbook specifically to have on hand to respond to it.
Within four weeks of the 9/11 attacks, a new White House cabinet position was created. Within six weeks, Congress passed substantive legislation to improve the counterterrorism activities of the federal government, the USA Patriot Act. The next year, it passed another major piece of legislation, the Homeland Security Act, creating the Department of Homeland Security. Fourteen months after the attacks, the president and Congress created the 9/11 Commission—whose report was issued in 2004, the same year a third major piece of legislation was passed, the Intelligence Reform and Terrorism Prevention Act, which restructured the intelligence community and created the Office of the Director of National Intelligence. Since then, the United States has, in fact, protected against the threat that struck in 2001: There has not been, in the past 19 years, an international terrorism attack here at home of the size, scope or effect of the 9/11 attacks. As the report states, changes were made to government “with the full support of Congress, both major political parties, the media and the American people.” That operational success has come with costs: Some of the activities that the government undertook in the ensuing years stressed the nation’s commitment to protecting civil liberties and privacy, and others stretched beyond the morally defensible.
Setting aside those debates here, however, the changes made to law and government operations, 19 years out, are failing to adapt to today and tomorrow’s challenges. Instead, the federal government response to the pandemic has been a leadership and operational failure. Moreover, the collective national energy of the U.S. is drained. There is no consensus among the two major political parties. Whereas the 9/11 Report opened with a conciliatory note—“We have come together with unity of purpose because our nation demands it”—with the pandemic, the president seeks to deny the facts in order to preserve his political fortunes. There is no unity of purpose, no recognition of agreed-upon facts, no bridge between political opponents. Instead, in the midst of this national crisis, one of the two major political parties has abandoned a party platform in lieu of deference to a dominant political personality; a characteristic of authoritarian governments, not a democratic one. Many Americans are angry and tired; tens of millions are now unemployed. A smaller subset are increasingly radicalized to extremes and are, quite literally, killing each other.
Despite years of effort to restructure government to keep the country safe from what at the time was the critical national security threat, the present national circumstances—not only as they relate to the pandemic but across a range of other national security threats, including malign cyber activity by adversarial foreign powers, the emboldening of domestic terror groups and global challenges like climate change—highlight that the government is not adapting in a way that adequately protects American lives from emerging national and homeland security threats. And yet, for the first time in at least 25 years, the intelligence community has not provided an annual worldwide threat assessment, a casualty of inadequate congressional intelligence oversight and political subservience of intelligence community chiefs. And so, what I worry most about—aside from the tragedy of the thousands of lives lost and the sadness of the childhoods stunted by the U.S. government’s failure—is that the pandemic will numb Americans to the expectation that their government owes them more.
Whither the Department of Homeland Security?
There is no better example than the Department of Homeland Security of a government entity created to protect Americans and yet out of sync with the needs of the country in a crisis. The department was stood up quickly after the 9/11 attacks; the Homeland Security Act of 2002 brought together 22 different agencies, including those involved in border security, immigration, and transportation security, to prevent another 9/11. That particular objective has been met, and yet, as of this writing, the department is on the brink of failure. It is a creation of the post-9/11 era and is increasingly subject to calls for its demise, even from some who originally supported it. The focus of the department that was created to protect Americans from the next attack, has instead, as Paul Rosenzweig and I wrote recently in the Washington Post, “mutated over the past four years from one of cooperation to one of confrontation.”
While the department was created before the 9/11 Report came out, its purpose and mandate were still very much a part of the report. Indeed, the report provides the context for understanding how the connections among border security, immigration and illegal entry became so deeply intertwined with the concept of protecting against attack:
Our investigation showed that two systemic weaknesses came together in our border system’s inability to contribute to an effective defense against the 9/11 attacks: a lack of well-developed counterterrorism measures as a part of border security, and an immigration system not able to deliver on its basic commitments, much less support counterterrorism.
The report then goes on to make specific recommendations for the department regarding travel and border screening, the key features of the department’s different components that justified bringing those components together to protect against future attacks. Crucially, leading up to the attacks of 9/11, an astute border agent stopped a potential accomplice at an airport, and turned him away from entering the country. And so the report articulated a need to have a functioning immigration system that provided for accountability as to who enters and exits the country—but its counsel was a long distance from the intolerance that guides the current administration’s approach to immigration enforcement:
Our borders and immigration system, including law enforcement, ought to send a message of welcome, tolerance and justice to members of immigrant communities in the United States and in their countries of origin. We should reach out to immigrant communities. Good immigration services are one way of doing so that is valuable in every way—including intelligence.
Yet the maturation of the department over the past 19 years has been difficult. Well before the summer of 2020, the signs were already there that Homeland Security was in severe need of greater oversight and accountability. Beginning in fall 2019, I convened a bipartisan task force of former department officials and homeland security and legal experts to review the department’s oversight and accountability as it relates to its border security, immigration and law enforcement components. This review, detailed in a May report published by the Center for a New American Security (CNAS) and summarized here, revealed that the growth of the department’s law enforcement capacity—combined with its persistent low morale, training inadequacies, history of corruption, problems in specific components and weak headquarters controls—provided fertile ground for potential civil liberties and privacy abuses. As the report previewed, if Homeland Security “does not reform to address the issues identified in this report, it is likely the department will face calls for partial or full dismantlement under a future administration. Such a result would undo nearly 20 years of effort to better protect the nation from terrorism and emerging homeland threats, and risk returning to a pre-9/11 era of dis-jointed homeland security coordination.”
It would also, as Chappell Lawson and Alan Bersin write in a new volume they have edited along with Juliette Kayyem, likely “bring significant disruption and confusion with little expectation of operational improvement.” Their view is consistent with other experts who have recently reviewed what the next iteration of the department might look like. A recent review led by Thomas Warrick and Caitlin Durkovich at the Atlantic Council similarly counsels against dismantlement, noting that “scattering [Homeland Security’s] functions among other cabinet departments would not make those missions and capabilities go away.”
By June, however, the lack of adequate internal controls and the politicization of the department’s activities burst into public view. Led by a cadre of second- and third-string acting officials, Homeland Security came under scrutiny for its robust deployment of law enforcement personnel during the protests in D.C. following the George Floyd killing, its aggressive deployment of tactical personnel beyond the scope of their mission in Portland, and the downright scandalous issuance of so-called intelligence reports about reporters and researchers, including one of the founders of this site. The department’s credibility continues to plummet.
Thus, as the presidential election draws nearer and the country faces either a new administration in January 2021 or a second term of a Trump administration, one thing is quite clear: The Department of Homeland Security is at a crossroads and either will require major legislative surgery or will likely face dismantlement by Congress. So, what will it take for the department to remain a viable entity? First, to continue without dismantlement, the department’s oversight and accountability mechanisms must be substantially improved, and promptly. Second, if the department is to continue to exist, it cannot do so under its current statutory mission. That mission reflects neither the department’s day-to-day activities nor the current national and homeland security threat landscape. My CNAS report provides specific recommendations for doing both. Homeland Security’s survival depends on a combination of a modernized statutory mission; strong competent leadership; a shedding of some law enforcement components to reduce governmental redundancies and refocus the department’s law enforcement capabilities on core functions; and a development oversight, compliance, and accountability component, mandated by law. With these changes, the department has a chance at a future. Without these significant changes, the department will continue on its current path of politicization and increasing disconnectedness from the population it is intended to serve. On this path, it will not survive intact.
Emerging Threats and Challenges
The report articulated the challenge of adapting to new national security threats before it is too late, and the predictable pattern of government reaction:
This pattern has occurred before in American history. The United States faces a sudden crisis and summons a tremendous exertion of national energy. Then, as that surge transforms the landscape, comes a time for reflection and reevaluation. Some programs and even agencies are discarded; others are invented or redesigned. Private firms and engaged citizens redefine their relationships with government, working through the processes of the American republic.
This cycle may be predictable, but it is better than inaction. To date, the pandemic has not prompted the same calls for similar dramatic action—perhaps because it was not an unseen threat, but instead a failure of leadership and implementation. Even the Department of Homeland Security—the entity created specifically to address the last major national crisis of security and safety—has not much more than a supporting role in responding to the pandemic. Primary responsibility for the pandemic resides with the Department of Health and Human Services. As Lawson and Bersin explain, response to pandemic infectious disease briefly was assigned to the Federal Emergency Management Agency, a component of Homeland Security, but later returned to Health and Human Services. But perhaps we should be asking whether—notwithstanding the manner in which the current administration is using the department—Homeland Security should have greater responsibilities for managing the pandemic. Perhaps the department’s lack of involvement in the biggest crisis facing the country today is the latest illustration of a government out of sync with the threats that are impacting Americans’ lives. Homeland security is not just about terrorism; it is instead about keeping the country safe from all hazards—a broad, expansive and, most importantly, evolving remit. Yet, as Kayyem discusses, “the Department continues to struggle to find its place in the broader [homeland security] enterprise.”
I don’t mean to suggest that a pandemic of infectious disease is necessarily the threat around which the Department Homeland Security specifically, or the homeland security enterprise more broadly, should be organized. The point—which can be extrapolated from the 9/11 Report, to the pandemic and to Homeland Security’s present operations and focus—is the broader question of how the country, and the national and homeland security enterprises, are or are not adapting to present circumstances and emerging threats. The experience of the year 2020 suggests that the answer is, overall, not well. And that’s without even addressing the threats of foreign interference in elections and democratic processes, a whole other realm of threat to democracy—or cyberattack, or domestic terrorism, or climate change, or one of the many other threats the country would have been warned about this year, had the annual worldwide threat assessment hearing been held.
The 9/11 Report counsels, “In the post-9/11 world, threats are defined more by the fault lines within societies than by the territorial boundaries between them.” In the years since the attacks, that lesson has never been more relevant than it is in the autumn of 2020. The question is whether Americans—as a nation, together—have the capacity to see those fault lines, and the fortitude to take a hard look at whether the country’s present institutions are best suited to steady the nation.