Abolish the Department of Homeland Security
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No. 683 September 11, 2011
Abolish the Department of Homeland Security
by David Rittgers
Executive Summary
After the terrorist attacks of September 11, sibilities for aviation security, domestic surveil-
2001, Congress created the Department of lance, and port security have made it too easy
Homeland Security (DHS), an umbrella organi- for politicians to disguise pork barrel spending
zation that would oversee 22 preexisting federal in red, white, and blue. Politicians want to bring
agencies. The idea was to improve the coordina- money home to their districts, and as a result,
tion of the federal government’s counterterror- DHS appropriations too often differ from what
ism effort, but the result has been an ever-ex- ought to be DHS priorities.
panding bureaucracy. The Department of Homeland Security
DHS has too many subdivisions in too many should be abolished and its components re-
disparate fields to operate effectively. Agencies organized into more practical groupings. The
with responsibilities for counterfeiting investi- agencies tasked with immigration, border secu-
gations, border security, disaster preparedness, rity, and customs enforcement belong under the
federal law enforcement training, biological same oversight agency, which could appropri-
warfare defense, and computer incident re- ately be called the Border Security Administra-
sponse find themselves under the same cabinet tion. The Transportation Security Administra-
official. This arrangement has not enhanced tion and Federal Air Marshals Service should be
the government’s competence. Americans are abolished, and the federal government should
not safer because the head of DHS is simulta- end support for fusion centers. The remaining
neously responsible for airport security and DHS organizations should return to their for-
governmental efforts to counter potential flu mer parent agencies.
epidemics. Terrorism remains a serious problem, but
National defense is a key governmental re- policymakers ought to be more candid with the
sponsibility, but focusing too many resources American public. Instead of pandering to fear
on trying to defend every potential terrorist tar- and overreacting to every potential threat, poli-
get is a recipe for wasteful spending. Our lim- cymakers should keep the risk of terrorist at-
ited resources are better spent on investigating tacks in perspective and focus public resources
and arresting aspiring terrorists. DHS respon- on cost-effective measures.
David Rittgers is a legal policy analyst with the Cato Institute.The rationale for the Executive Office of the President or the
the new cabinet Introduction Department of Justice.2
The first step toward what is now known
agency was that The terrorist attacks on September 11, as DHS came about when President Bush
it would improve 2001, prompted numerous changes in Amer- formed the Office of Homeland Security fol-
ican national security policy, including the lowing 9/11, an executive branch office in-
the federal creation of a Department of Homeland Secu- tended to facilitate intergovernmental com-
government’s rity (DHS). The rationale for the new cabinet munication to respond to terrorist threats.3
counterterrorism agency was that it would improve the federal President Bush appointed former governor
government’s counterterrorism efforts. Now Tom Ridge (R-PA) as the first director of
efforts. that several years have passed since its cre- homeland security. The same executive or-
ation, we have an adequate record to assess der created the Homeland Security Council,
how the agency has done in that regard. This a domestic-focused body that would paral-
paper will begin with a brief review of the lel the foreign-oriented National Security
birth of DHS, and then summarize its struc- Council, with membership to include the
ture and organization. The post-9/11 reorga- president; vice president; attorney general;
nization has failed for several reasons. First, secretaries of the Treasury, Defense, Health
DHS has too many subdivisions in too many and Human Services, and Transportation;
disparate fields to operate effectively. Second, directors of FEMA, the Federal Bureau of
DHS spends millions on pork barrel pro- Investigation (FBI), and the Central Intelli-
grams that are disguised as counterterrorism gence Agency (CIA); and the assistant to the
measures. Third, DHS duplicates the work president for Homeland Security.
of other police agencies and assumes avia- The Homeland Security Council was an
tion and airport security responsibilities that unnecessary creation; the National Security
ought to be handled by the airline industry. Council already had the capability and re-
Congress should acknowledge its mistake sponsibility to coordinate all of the tasks that
and abolish the Department of Homeland have since been delegated to the Homeland
Security. Security Council and DHS.4 The Obama ad-
ministration’s consolidation of the support
staff for the National and Homeland Secu-
Creation of the Department rity Councils is a tacit admission of this du-
of Homeland Security plication of effort.5
Nevertheless, some members of Con-
The idea of a Department of Homeland gress, led by Sen. Joseph Lieberman (D-CT),
Security had been proposed even before the believed that the Homeland Security Coun-
September 11 attacks. In early 2001 the U.S. cil provided insufficient government over-
Commission on National Security/21st Cen- sight of homeland security and argued for a
tury, chaired by former senators Warren Rud- new cabinet-level position that coordinated
man (R-NH) and Gary Hart (D-CO), recom- and controlled the budget of a number of
mended the creation of a “National Homeland agencies with terrorism prevention and re-
Security Agency” that would bring together sponse capabilities.6 Though initially resis-
the Federal Emergency Management Agency tant to the creation of a new federal agency,
(FEMA), Customs Service, Coast Guard, and President Bush eventually embraced the
Border Patrol in order to prevent and respond plan. By mid-2002, White House staffers
to national security threats.1 The report was were meeting to redesign the federal gov-
one of several competing proposals to reorga- ernment in what they would later describe
nize domestic counterterrorism and disaster as a “rushed and almost random” series of
response capabilities under a single indepen- deliberations.7 In a nod to conservative prin-
dent agency or a coordinator within either ciples, Bush promised to keep the reorgani-
2zation revenue-neutral, a proposition that adding new layers of bureaucracy had not
seems laughable in retrospect.8 come true. Duncan cited past governmental
Even as DHS was being proposed, policy reorganizations that produced ever-greater
experts and White House staffers predict- spending by the federal government, yet
ed a painful growth in bureaucracy. The “those departments were created with words
proposal that would eventually determine saying that they were going to increase ef-
the department’s scope was the fourth of ficiency and do away with overlapping and
four options proposed to Secretary Ridge duplication of services and so forth . . . the
by RAND Corporation expert Michael A. same things we’re hearing now.”14
Wermuth.9 When Ridge chose that option, Rep. Henry Waxman (D-CA) expressed
“Wermuth warned Ridge it was a horrible concerns to then–Homeland Security direc-
idea. He spoke of ‘train wrecks coming, a tor Tom Ridge about the size of the proposed
clash of cultures . . . you’re going to strangle organization. “The bill you have proposed in-
yourself in bureaucracy for years.’”10 cludes 21 deputy, under, and assistant secre-
Harvard security expert Richard Falken- taries. This is more than double the number
rath played a key role in creating the new bu- of deputy and assistant secretaries at Health
reaucratic structure. He “thought it would and Human Services, which administers a
be nice to give the new department a research budget that is three times bigger than the
The Homeland
lab” and called a friend to ask which of the budget we expect for this agency. If the objec- Security Act of
three Department of Energy labs would fit tive is not to grow government, why does the 2002 passed by
the bill. Based on the friend’s brief response, new department need so many deputy and
the Lawrence Livermore National Labora- assistant secretaries?”15 large margins,
tory was added to the list, Falkenrath not Paul C. Light of the Brookings Institu- 299–121 in the
realizing “that he had just decided to give tion raised the prospect that DHS would
the new department a thermonuclear weap- simply be too big a ship to steer. Light fo-
House and 90–9
on simulator.”11 Falkenrath also moved the cused on the largely unconnected tasks that in the Senate.
enforcement duties of the Immigration and DHS agencies would perform and high-
Naturalization Service from the Department lighted the “50 percent rule,” the principle
of Justice to DHS without moving over the that organizations should only be put under
immigration judges who presided over de- the same umbrella of management if at least
portation hearings, because he did not know 50 percent of their responsibilities overlap.16
there were immigration judges.12 The structure of DHS obviously fails to con-
form with this principle.
Congressional Debate Rep. David Obey (D-WI) questioned the
The congressional hearings that exam- wisdom of having two sets of infectious
ined the scope of DHS provided indications disease researchers on the government pay-
that lawmakers were moving hastily. Rep. roll—one at DHS and one at the Depart-
Dan Burton (R-IN), chairman of the House ment of Health and Human Services: it’s
Government Reform Committee, started a “as if you set up two fire departments in the
hearing by suggesting that DHS would be “a same town and assigned one to handle ar-
Defense Department for the United States, son and another fires caused by accident.”17
if you will,” seemingly oblivious to the fact In spite of the opposition of a few mem-
that the Department of Defense is the “De- bers of Congress, the Homeland Security Act
fense Department for the United States.”13 of 2002 passed by large margins, 299–121 in
While proponents of DHS made claims that the House and 90–9 in the Senate.18
the consolidation of agencies would be more
efficient and could save money in the long Structure of the Department of Home-
run, Rep. John Duncan (R-TN) said that past land Security
predictions of savings and simplification by Congress transferred a number of federal
3Table 1
Current Structure of the Department of Homeland Security (legacy/parent agency in
parentheses)
Original Agency (Department) Current Agency/Office
The U.S. Customs Service (Treasury) U.S. Customs and Border Protection (CBP)—in-
spection, border and ports of entry responsibilities
U.S. Immigration and Customs Enforcement (ICE)
—customs law enforcement responsibilities
The Immigration and Naturalization CBP—inspection functions and the U.S. Border
Service (Justice) Patrol
ICE—immigration law enforcement: detention and
removal, intelligence, and investigations
U.S. Citizenship and Immigration Services—adjudi-
cations and benefits programs
The Federal Protective Service ICE
(General Service Administration)
The Transportation Security Administration Transportation Security Administration
(Transportation)
Federal Law Enforcement Training Center Federal Law Enforcement Training Center
(Treasury)
The Federal Emergency Management Agency FEMA
(FEMA)
Office for Domestic Preparedness (Justice) Responsibilities distributed within FEMA
Strategic National Stockpile and the Returned to Health and Human Services, July, 2004
National Disaster Medical System (HHS)
Nuclear Incident Response Team (Energy) Responsibilities distributed within FEMA
Domestic Emergency Support Teams (Justice) Responsibilities distributed within FEMA
National Domestic Preparedness Office (FBI) Responsibilities distributed within FEMA
Chemical, Biological, Radiological, Nuclear Science & Technology Directorate
Countermeasures Programs (Energy)
Environmental Measurements Laboratory (Energy) Science & Technology Directorate
National Biological Warfare Defense Analysis Science & Technology Directorate
Center (Defense)
Plum Island Animal Disease Center (Agriculture) Science & Technology Directorate
Federal Computer Incident Response Center US-CERT, Office of Cybersecurity and Communi-
(GSA) cations in the National Programs and Preparedness
Directorate
National Communications System (Defense) Office of Cybersecurity and Communications in the
National Programs and Preparedness Directorate
4Original Agency (Department) Current Agency/Office
National Infrastructure Protection Center (FBI) Dispersed throughout the department, including Off-
ice of Operations Coordination and Office of Infra-
structure Protection
Energy Security and Assurance Program (Energy) Integrated into the Office of Infrastructure Protec-
tion
U.S. Coast Guard (Transportation) U.S. Coast Guard
U.S. Secret Service (Treasury) U.S. Secret Service
Source: Department of Homeland Security, “Who Became a Part of the Department?” http://www.dhs.gov/xabout/
history/editorial_0133.shtm.
agencies that had previously been organized the capital region components of DHS. And
under the Departments of Justice, Treasury, yet DHS headquarters components are too
Transportation, Agriculture, and Defense big to fit in the largest D.C.-area government
to a new umbrella agency, the Department construction project since the Pentagon.
of Homeland Security. Table 1 shows how
DHS is currently structured (legacy/parent Creating a New Bureaucracy to Fix Prob-
agency in parentheses).19 lems in Existing Ones
Consolidating so many agencies and Among the governmental mistakes lead-
responsibilities creates its own set of prob- ing up to the 9/11 attacks was the poor co-
lems. As will be discussed below, congressio- ordination between the FBI and CIA. The
nal predictions of unnecessary bureaucracy, 9-11 Commission Report notes that the CIA
duplication of effort, and wasteful spending missed multiple “operational opportunities”
have come to pass. that might have prevented the attacks. The
CIA monitored an al Qaeda planning meet-
ing in Kuala Lumpur, Malaysia, in January
A Morass of Inefficiency 2000 but lost track of several attendees who
and Waste flew to Bangkok.20 Two of those terrorists,
Nawaf al Hamzi and Khalid al Midhar, later
Congress made a dreadful mistake by flew to Los Angeles. The mishaps in track-
consolidating unconnected national secu- ing those terrorists—who would later fly
rity responsibilities under DHS. National American Airlines Flight 77 into the Penta-
security is a whole-of-government respon- gon—highlights several shortcomings in the
sibility that can only be addressed with a intelligence effort against al Qaeda. First, the
subset of the cabinet and the heads of rele- CIA did not develop a transnational plan for Predictions of
vant agencies, such as the National Security tracking the al Qaeda members at the Kuala
Council. Indeed, the failings within the fed- Lumpur meeting. Neither did the CIA put
unnecessary
eral government leading up to the 9/11 ter- either of the two men on a watch list, notify bureaucracy,
rorist attacks lay primarily with the CIA and the FBI when the CIA learned that they pos- duplication
FBI, neither of which became a part of DHS. sessed valid U.S. visas, nor did the CIA notify
Creating DHS resulted in an unwieldy or- any other agency when it discovered that al of effort,
ganization with too many components. To Hamzi had flown to Los Angeles. and wasteful
solve the management issues created by the The FBI also suffered from internal agency
DHS structure, the federal government is failures: field agents identified many threats,
spending have
now building a new headquarters to house yet FBI supervisors did not act on those warn- come to pass.
5DHS consistently ings. An agent in Phoenix, Arizona, identified DHS is no stranger to the concept of span
ranks near the tool that al Qaeda would use on 9/11— of control. Disaster response experts stress
hijacked airliners. He sent a memorandum that idea when operating the Incident Com-
the bottom to the New York Field Office warning of the mand System (ICS), a recommended set of
of employee “possibility of a coordinated effort by Usama emergency management practices:
Bin Ladin” to send students to civil aviation
surveys on schools in the United States.21 The agent The general rule is five subordi-
satisfaction with based his warning on the “inordinate num- nate units per supervisory position,
management. ber of individuals of investigative interest” although allowance is made to vary
attending local flight schools. FBI agents in this ratio under special circumstances.
the Minneapolis Field Office believed that If tasks are relatively simple or routine,
Zacharias Moussaoui, the convicted “20th taking place in a small area, commu-
hijacker,” was an “Islamic extremist prepar- nications are good, and the incident
ing for some future act in furtherance of character is reasonably stable, then
radical fundamentalist goals,” and that his one supervisor may oversee up to eight
plan might involve hijacking a plane. The subordinate units. Conversely, if the
FBI National Security Law Unit disapproved tasks are demanding, taking place over
the Minneapolis Field Office’s request for a a large area, and incident character
Foreign Intelligence Surveillance Act (FISA) is changing, then the span of control
warrant to search Moussaoui’s laptop prior might be reduced to one supervisor
to the 9/11 attacks. per two or three subordinates.23
Spending tens of billions of dollars creat-
ing the Department of Homeland Security Somewhat ironically, FEMA, a DHS subor-
had nothing to do with fixing those errors, dinate administration, teaches this theory in
but instead created more bureaucracy. its Emergency Management Institute.24
The difficulties of management are com-
Span of Control pounded by the wide variety of tasks that
The structure of DHS creates waste and DHS is expected to perform: disaster re-
inefficiency. The problem stems from a span sponse, border security, maritime rescue, bi-
of control that is too large and spread across ological weapons research, and domestic in-
too many disciplines. “Span of control” is telligence analysis, just to name a few. Given
a term of art from management theory; it the wide geographic distribution of DHS of-
refers to the number of subordinates re- fices and the dynamic nature of its mission,
porting to a supervisor. Traditional models it should come as no surprise that the agency
hold that one manager can effectively lead is often criticized as being mismanaged, or
five or six subordinates, but adding subor- that DHS consistently ranks near the bot-
dinates (or subordinate agencies, in the case tom of employee surveys on satisfaction with
of DHS) can lead to reduced performance management.25
and morale in the organization. “Spans may If consolidation of unrelated agencies
be limited by where people are and by the were an effective way to run government, the
problems of control and communication cabinet would have just one member respon-
over distance. Also, a supervisor can exercise sible for all agencies—the secretary of Gov-
more effective control over a broader span in ernment—and be done with it. As George
a stable situation than under dynamic con- Washington University law professor Jeffrey
ditions.”22 While stable bureaucratic con- Rosen points out, the unwieldy amalgama-
ditions allow for a broader span of control tion of nearly two dozen legacy agencies
than crisis management, there is a limit to into DHS makes little sense in terms of ef-
how many organizations can fit under one fective government. “Both [political] parties
umbrella and still be effectively managed. seem incapable of acknowledging an un-
6comfortable but increasingly obvious truth: in DHS’s successor agency and parceling out
that the Department of Homeland Security preparedness tasks to other cabinet heads
was a bureaucratic and philosophical mis- (an arrangement that will resemble pre-DHS
take.”26 The department’s 22 federal agen- federal organization) would be a more sen-
cies operate out of 70 buildings at 40 loca- sible and workable organization.
tions in Washington, D.C., and at the time
of Rosen’s observation in 2008, reported to Waste in DHS Grant Programs
88 congressional oversight committees. The DHS’s creation spurred a growth in
situation has worsened. There are now 108 spending as well as an increase in bureaucra-
congressional committees, subcommittees, cy. Federal spending on homeland security
and panels claiming jurisdiction over DHS has increased from $19.5 billion in 2002 to
operations.27 $44.1 billion in 2010.30 Much of that mon-
DHS is now building a consolidated head- ey was wasted; a recent study by Professors
quarters in an effort to compensate for the John Mueller and Mark Stewart found that
difficulties in managing a large number of in order to survive a cost-benefit analysis,
agencies at different locations across the na- increased homeland security expenditures
tional capital region. The $3.4 billion dollar “would have to deter, prevent, foil, or protect
complex in southwest Washington, D.C., will against 1,667 otherwise successful [attempt-
There are
relocate DHS employees to 176 acres at the ed Times Square car bomb] type attacks per now 108
former grounds of the St. Elizabeth’s hospi- year, or more than four per day.”31 congressional
tal, including a new $435 million, 1.8-mil- Congress has used homeland security as
lion-square-foot headquarters for the Coast a way to legitimize pork barrel spending, committees,
Guard.28 most evidently in the $34 billion in DHS subcommittees,
Remarkably, DHS has so many compo- grants to states and localities over the last
nents that this gigantic new facility—the nine years.32 These grant programs exhibit
and panels
largest government construction project the pathologies common to other grant claiming
since the Pentagon—will still be inadequate. programs, such as extravagant overspend- jurisdiction over
The consolidation would reduce the num- ing, encouraging state and local officials to
ber of DHS locations in the capital region devote their time lobbying (or hiring grant DHS operations.
from the current 46 to a range of 7 to 10, management personnel to get more grants)
but the multibillion dollar project will only instead of solving problems, and unfair
house 14,000 of the 35,000 DHS employees redistribution of taxpayer money among
in the D.C. area and is projected to save only states.33 The amorphous threat of terrorism
$400 million in management expenses over and aggregation of so many responsibilities
the next 30 years.29 It seems unlikely that under DHS encourages wasteful spending.
these savings can be projected 30 years out Economist Veronique de Rugy describes this
with such certitude. as “the political effect of the phrase homeland
Costly congressional oversight, employee security, which tends to short-circuit skep-
dissatisfaction, and a new headquarters com- ticism. Even DHS activities unrelated to
plex that cannot house all DHS headquar- homeland security are apt to see their fund-
ters personnel are not problems that can ing increase, on the assumption that they
be addressed with better management or a have something to do with the function in-
more efficient staff. The structure of DHS is dicated by the department’s name.”34
the problem. Congress should not give DHS DHS grants are structured so that mem-
a massive portfolio of responsibility and bers of Congress from both urban and rural
then complain about the resulting oversight areas end up with pots of money to allocate
nightmare. Congress should instead divide to certain constituents. The two main grant
the responsibilities of DHS into more man- programs, the Urban Areas Security Initia-
ageable groupings. Keeping border security tive (UASI) and the State Homeland Secu-
7rity Program (SHSP), benefiting urban and ●● Rear Admiral Harvey Johnson, com-
rural areas respectively, guarantee a handout mander of Coast Guard’s District Sev-
to every state.35 Current statutory language en in Miami, decided his official resi-
requires a minimum of one quarter of UASI dence wasn’t stylish enough, opting for
and SHSP funds be devoted to counterter- a “6,200-square-foot, four-bedroom,
rorism efforts. SHSP funding is doled out re- four-bath home that costs taxpayers
gardless of population, giving rural and less $111,600 per year in lease payments.
populous states higher per-capita expendi- Utilities, maintenance, and other up-
tures. Budgeting without regard for popula- keep (such as the cleaning service for the
tion density, critical infrastructure, or other backyard swimming pool) are extra.”41
potential risk assessment metrics guarantees ●● Grand Forks, North Dakota (popula-
wasteful spending. After all, al Qaeda has fo- tion 52,838), has more biochemical
cused its attacks almost exclusively in urban suits and gas masks than police of-
areas.36 ficers to wear them. Mason County,
In the first year of DHS grant funding, Washington (population 60,699), pur-
SHSP programs took the lion’s share of the chased a $63,000 hazardous materials
funds, netting $2 billion, while UASI funds decontamination unit, even though it
amounted to almost $600 million.37 The has no hazmat team.42
SHSP provision of equal funds to all of the ●● Members of Congress inserted a $15
states, regardless of population or antici- million earmark for a border check-
pated threats, proved an easy sell for rural point upgrade in the tiny village of
representatives and senators. Whitetail, Montana (population 71).43
Here are some examples of the reckless The border checkpoint in Westhope,
spending: North Dakota, which serves an average
of 73 people a day, also received $15
●● Knox County, Ohio (population million for an upgrade.44 The border
54,500), used over $100,000 in home- checkpoints at Laredo, Texas, serving
land security grant funds to purchase 55,000 travelers and 4,200 trucks daily,
a hazardous materials trailer and a and processing $116 billion in goods
truck to tow it. The equipment sat un- annually, were rated the government’s
used and was later sold because of high highest priority but received no addi-
maintenance costs. “I think it was a to- tional money.45
tal waste of taxpayer dollars from the
federal government on down,” County Aware of the gold-rush pathology in DHS
Budgeting Commissioner Tom McLarnan said. grant programs, Congress has reduced the
without regard “A total waste.”38 amount of state-directed SHSP funding46
●● A California urban area acquired 55 and changed formulas mandating spending
for population large-screen digital televisions cost- ratios to the states.47
density, critical ing $74,394 as part of a new training Congress can do more. If SHSP grants
system for its fusion center. Inspec- were eliminated, taxpayers would save over
infrastructure, or tors discovered that the state had pur- $500 million a year at current funding lev-
other potential chased the televisions but not the as- els.48 The case for doing this is strong; the
risk assessment sociated training software. “On the day lack of a risk assessment and uniform treat-
[the inspectors] visited, all of the televi- ment of all jurisdictions make this program
metrics sions were being used to monitor the an unequivocal handout to the states. At a
guarantees same television station.”39 minimum, SHSP grants should be restruc-
●● Bennington, New Hampshire (popula- tured in one of two ways: (1) rural terrorism
wasteful tion 1,273), received $6,500 for chemi- targets should apply for funds and compete
spending. cal weapons suits.40 based on neutral risk assessments as urban
8jurisdictions are required to do; or (2) grants do not provide a means to measure the effect Homeland
should be reduced to a level of funding that UASI regions’ projects have on building re- security grant
would force states to prioritize public mon- gional preparedness capabilities—the goal of
ies toward anti-terrorism efforts that survive the UASI program.”52 programs can
a cost-benefit analysis. As an initial bench- Congress has begun to move UASI spend- be significantly
mark, members of Congress could eliminate ing in the right direction. The FY 2011 bud-
all SHSP funding except for the levels re- get, passed halfway through the fiscal year,
reduced without
quired to meet the current law enforcement reduced funding to $663 million: $540 mil- endangering
terrorism prevention activities minimum, lion for the 11 Tier I cities and $121 million public safety.
which by law must compose a quarter of for 20 Tier II cities.53 This spending reduc-
SHSP funds. Doing so would reduce the fed- tion is long overdue, but Congress can do
eral budget by $394 million, and lawmakers better. Proposed grant budgets for FY2012
would be able to defend their fiscal restraint provide for $1 billion in total grants, a two-
with the honest statement that they had not thirds reduction from historical levels, but
reduced funds devoted to state and local the cuts face heavy opposition.54
counterterrorism efforts by a penny.49 If the al-Qaeda network can be defeated
But even though Congress reduced hand- by giving federal funds to localities for un-
outs to the states under SHSP several years used biological warfare equipment, armored
after the program’s inception, they increased vehicles, and extravagant checkpoints at
the funding of the urban-oriented UASI pro- barely-used border crossings, then the Unit-
gram and loosened restrictions on “urban” ed States can declare victory now. Of course
spending, allowing more areas to qualify for al Qaeda can’t be defeated this way, and lead-
those funds. UASI began in 2003 by provid- ers in Congress should stop using homeland
ing funds for seven large cities that make ob- security grants as a way to direct money into
vious terrorism targets but then quickly ex- their home districts. Homeland security
panded to provide funds for 23 more urban grant programs can be significantly reduced
areas. By FY 2010, the number was up to 64 without endangering public safety.
urban areas and $832 million. Smaller cities
such as Bakersfield, California (population
347,483), qualified for money under UASI, Flying the Unfriendly Skies
a far cry from the original intent of the pro-
gram.50 DHS expenditures in aviation security
The rapid expansion of UASI grants deserve particular scrutiny. Most aviation
pushed funds to unlikely terrorism targets. security funds are spent on static defen-
A June 2008 Government Accountability Of- sive measures that are susceptible to waste,
fice (GAO) report found that while the Tier questionable in their potential for success,
I UASI grants (obvious targets such as Los or may be more effectively delivered by the
Angeles; New York; and Washington, D.C.) private sector than the government. More-
were based on reasonable findings of risk, over, the controversial Advanced Imaging
the Tier II UASI grants (the remaining 50+ Technology (AIT) units, or “body scanners,”
cities) were not. “Rather, DHS considered all fail a cost-benefit analysis. Congress should
states and urban areas equally vulnerable to privatize airport screeners and pass the fi-
a successful attack and assigned every state nancial burden of passenger aviation secu-
and urban area a vulnerability score of 1.0 in rity from the taxpayer to the flying public.
the risk analysis model, which does not take Prior to 9/11, airports and airlines were
into account any geographic differences.”51 responsible for airport screening. In the
A subsequent GAO report in 2009 found wake of the terrorist attacks, Congress enact-
that DHS provided few useful metrics to jus- ed the Aviation and Transportation Security
tify the money spent. “FEMA’s assessments Act, which (1) created the Transportation Se-
9curity Administration (TSA), (2) federalized chance of successfully accomplishing each
airline passenger screening, (3) expanded the of the following three tasks: (1) preventing a
Federal Air Marshal Service, and (4) man- suicide bomber from boarding an aircraft; (2)
dated the installation of hardened cockpit preventing detonation of an explosive device
doors.55 Since the TSA took over, the num- because the use of the AIT prevented bomb
ber of airport screeners on the federal payroll construction with detectable and reliable ma-
has grown from 20,000 to 48,000.56 terials; and (3) preventing a suicide bomber
Aviation security in the United States is from getting a bomb past security that was
on the wrong track because it is viewed by large enough to down an aircraft.59 The study
policymakers as a public good when it is in concluded that to be cost-effective, body
fact a private good. Aviation security mea- scanner machines “every two years would
sures continue to escalate in intrusiveness have to disrupt more than one attack effort
and cost without regard for cost-effective- with body-borne explosives that otherwise
ness because the American taxpayer is al- would have been successful despite other se-
ways footing the bill. Once privatized, only curity measures, terrorist incompetence and
cost-effective security programs will be re- amateurishness, and the technical difficulties
tained, and the flying public will have the in setting off a bomb sufficiently destructive
The latest level of security that it is willing to pay for. to down an airliner.”60
trend in airport The GAO’s review of body scanners found
security is the From Shoe Checks to Body Scanners that “it remains unclear whether the [body
When terrorist plots directed at com- scanner technology] would have been able
use of “body mercial aviation became more inventive, to detect the weapon Abdulmutallab used in
scanner” aviation security authorities adopted reac- his attempted attack.”61 Body scanners are
tive pre-screening procedures. For example, effective in detecting high-density objects
machines that after Richard Reid’s attempted detonation (such as guns, knives), and hard explosives
can see beneath of a “shoe bomb,” the TSA announced new (such as C-4), but less so with low-density
the traveler’s rules requiring airline passengers to remove materials like thin plastics, gels, powders,
their shoes for explosive screening or x-ray and liquids. Airplane bombing plots have al-
clothing. analysis. And after authorities discovered a ready focused on liquid explosives.62An un-
plot to bring liquid explosives onto airliners dercover TSA agent recently snuck a firearm
in 2006, the TSA placed restrictions on the through AIT machines at the Dallas/Fort
quantity of liquids in passengers’ carry-on Worth International Airport several times,
luggage. showing a weak point of the system—the at-
The latest trend in airport security is the tentiveness of the officers monitoring the
use of “body scanner” machines that can see machine, a weakness not shared by the tra-
beneath the traveler’s clothing.57 Current ditional metal detector system.63
policy allows for the screening of all passen- Another weakness of body scanner tech-
gers by either (1) body scanner machines or nology is that it can be easily defeated by
(2) magnetometer screening supplemented terrorists who are willing to place explosives
with a “pat-down” search. Advocates of inside their bodies. As one commenter notes,
body scanners argue that explosives hidden “all males have a body cavity. Females have
under clothing, such as the bomb carried two body cavities. In prisons, these body cav-
by Farouk Abdulmutallab in the attempted ities are habitually used to smuggle drugs
Christmas Day bombing in 2009, require ex- and improvised weapons past body searches,
panded use of body scanners.58 including strip searches.”64
Yet the case for body scanners has been Terrorists have already employed explo-
overstated. In a recent study, academics Mark sives hidden in a body cavity, but not yet
G. Stewart and John Mueller assumed that on an airplane. On August 28, 2009, Prince
body scanner technology had a 50 percent Mohammed bin Nayef, the Saudi deputy
10Interior minister and leader of that nation’s next generation of body scanners should be
counterterrorism efforts, survived an at- borne by the aviation industry and the flying
tempted assassination.65 Abdullah Hassan public, where it will face more intense scru-
Taleh al-Asiri, a member of al Qaeda in the tiny than in Congress.
Arabia Peninsula, the same organization that
sponsored failed Christmas Day bomber Ab- Constitutional Questions and Mission
dulmutallab,66 detonated a bomb hidden in- Creep
side his anal cavity while meeting with Prince TSA checkpoints were established to
Mohammed to discuss the terms of Asiri’s thwart terrorists, but that objective does not
“surrender” to the Saudi kingdom and entry make all TSA actions proper. Current screen-
into an amnesty program. While the attack ing practices—AIT machines or full body
only injured Prince Mohammed, terrorists pat-downs—push at the boundaries of con-
might use the same method to smuggle ex- stitutional principles governing searches and
plosives aboard a plane, remove them in the seizures. In some instances, screeners have
plane’s restroom, and place them against the expanded their searches to discover evidence
hull of the aircraft. of any crime or wrongdoing, an unconsti-
For all of the above reasons, spending tutional practice beyond the TSA’s limited
large amounts of money on body scanners aviation security authority.
is a wasteful use of counterterrorism dol- The Constitution bars government au-
lars. Canceling a broader implementation thorities from engaging in unreasonable
of body scanners will result in some savings: searches and seizures. While the Supreme
the TSA has installed almost 500 scanners, Court has upheld brief, suspicionless seizures
and hopes to install up to 1,000 by the end at highway checkpoints to deter drunk driv-
of 2011, at a cost of $150,000 to $180,000 ing71 and to intercept illegal immigrants,72
per unit.67 The real savings are in personnel checkpoints may not be employed to pursue
costs, where taxpayers can save $340 million general crime control.73 Airport searches,
annually by simply not hiring the additional however, are administrative in nature and
employees that are needed to operate body individuals entering certain areas of an air-
scanner machines.68 port have a reduced expectation of privacy.74
Taxpayers should also stop footing the Taking the special needs of aviation security
bill for more body scanner machines because into consideration, federal courts have held
they may be paying for another form of the that suspicionless searches of all passengers
technology within a few years. DHS revealed prior to boarding are constitutionally per-
in July 2011 that al Qaeda in the Arabian Pen- missible.75
insula was interested in surgically implanting AIT scanners were designed as a second-
bombs in the human body, sparking discus- ary screening device, but their use as a pri-
sion of the next generation of scanner tech- mary means of passenger screening fails the
nology, one that will see through the human legal tests set forth by federal courts. Courts
body.69 If unsuccessful terrorist attempts to have consistently upheld blanket applica- TSA checkpoints
acquire and employ sophisticated technol- tion of a magnetometer—a “metal detec-
ogy such as weapons of mass destruction are tor”—as a means of primary screening, with were established
any indicator, this threat is hyped beyond use of a metal detection wand or pat-down to thwart
terrorists’ ability to actually deliver such a for those who set off the magnetometer.76 terrorists, but
weapon.70 In any event, surgically implanted As law professor Jeffrey Rosen points out,
bombs may not prove effective in bringing the language of the decisions upholding the that objective
down an airplane; as the attempted Saudi as- pre-AIT screening regime may lead a court to does not make
sassination demonstrates, the bearer of the conclude that the newer (and more intrusive)
bomb absorbs a significant amount of the screening regime is unconstitutional.77 One
all TSA actions
bomb’s force. The decision to purchase the federal appellate court held in 2007 that “a proper.
11Checkpoint particular airport screening search is consti- that exceed the scope of TSA’s aviation secu-
mission creep tutionally reasonable provided that it ‘is no rity mission.84
more extensive nor intensive than necessary, Checkpoint mission creep prompted a
prompted a in light of the current technology, to detect policy change after agents harassed Steven
policy change the presence of weapons or explosives.’”78 In Bierfeldt, a staffer for Campaign for Liberty,
2006 then-judge (now Supreme Court jus- a nonprofit libertarian political organiza-
after agents tice) Samuel Alito likewise ruled that a mag- tion. Bierfeldt had just left a convention in
harassed Steven netometer (primary) and wand (secondary) Missouri and was flying out of Lambert-St.
Bierfeldt, screening regime was “minimally intrusive” Louis International Airport when he was
and “well-tailored to protect personal pri- subjected to an unlawful detention by TSA
a staffer for vacy.”79 screeners.85 Bierfeldt was carrying $4,700 in
Campaign for The Electronic Privacy Information Cen- a lockbox from the sale of tickets, apparel,
Liberty. ter (EPIC) filed suit against DHS on the and paraphernalia associated with Cam-
basis of the primary-secondary screening paign for Liberty. TSA screeners considered
issue, claiming that “the TSA body scanner that amount of cash suspicious, and took Bi-
rule subjects all travelers to the most inva- erfeldt to a private screening room to inter-
sive search available as primary screening, rogate him, threatening him with arrest and
without any escalation.”80 While the D.C. prosecution unless he revealed the source
Circuit rejected this argument and consti- and purpose of the money. Bierfeldt was
tutional objections, it did order the TSA to eventually released, but he surreptitiously re-
go through a notice-and-comment rulemak- corded the detention and questioning with
ing procedure, which will force that agency his cell phone.
to respond to public complaints about the The American Civil Liberties Union
invasiveness and effectiveness of screening (ACLU) filed suit on Bierfeldt’s behalf, alleg-
procedures.81 ing that “TSA agents are instructed as a mat-
Ultimately, this controversy may be settled ter of standard operating procedure to search
by technology, not a federal court. Software for ‘contraband’ beyond weapons and explo-
is available that renders a stick-figure image sives,” a practice that exceeds TSA’s statutory
of a person passing through an AIT machine, authority.86 In response to the lawsuit, the
and a red dot on the image highlights poten- TSA revised its screening guidelines in the
tial threats for secondary screening.82 This fall of 2009.87 The new directives tell TSA em-
modification greatly reduces privacy con- ployees that “screening may not be conduct-
cerns for passengers, and implementation ed to detect evidence of crimes unrelated to
of this software may blunt criticism of AIT transportation security.”88
scanners. Yet there is reason to suspect that the re-
The fact that the federal government is vision of screening policies has not deterred
the primary provider of airport screening TSA employees from fishing for contraband
creates concerns other than revealing body or evidence of crimes beyond the agency’s
scanner images, particularly when TSA aviation security mandate. TSA screeners
screeners unlawfully detain travelers or look scrutinized Kathy Parker, a business man-
for evidence of crimes outside of the aviation ager, in apparent violation of the new guide-
security field. lines while she was departing from Phila-
A consistent body of checkpoint case law delphia International Airport.89 Parker was
bars TSA screeners from looking for evi- carrying an envelope with a deposit slip and
dence of crimes beyond plots against avia- $8,000 worth of checks made out to her and
tion security, a reminder that persons do her husband. As Philadelphia police officers
not surrender all liberties or expectations of joined the TSA screeners, Parker was told
privacy while traveling.83 Courts will exclude that they suspected her of embezzling the
evidence obtained by checkpoint searches money and leaving town in a “divorce situ-
12ation” because the checks were “almost se- like.96 Officers from TSA checked passengers
quential.” Only after police tried unsuccess- for bombs, Customs and Border Protection
fully to contact her husband by phone did (CBP) agents checked the immigration sta-
they decide to release Parker and allow her tus of travelers, and Immigration and Cus-
to leave the security checkpoint. Clearly this toms Enforcement (ICE) agents looked for
detention had nothing to do with aviation drugs and large amounts of cash. Although
security. those activities are conducted separately on a
Some experts advocate an adoption of routine basis, the synergistic effect of surren-
Israeli-style interrogations in lieu of body dering privacy on multiple fronts presents
scanners or other technological approaches, exactly the kind of general law enforcement
an invitation to more TSA mission creep.90 checkpoint that the Constitution was writ-
This methodology could not be scaled up ten to prevent.
from the relatively small Israeli aviation mar-
ket and applied in the United States without Privatize Aviation Security
at least quintupling (probably more) the The clearest way to reduce spending on
TSA’s annual budget.91 In spite of this, the airport screening and prevent TSA mission
TSA has recently started a pilot program at creep is to re-privatize airport security. That
Logan International Airport in Boston that would save $3 billion and place financial re-
Using private
uses brief interrogations to identify poten- sponsibility for security where it belongs— passenger
tial threats.92 This expansion of the preexist- with the passengers, airlines, and airports, screeners in
ing Screening of Passengers by Observation not the taxpayer.97
Techniques (SPOT) program seems unlikely Using private passenger screeners in lieu lieu of TSA
to ferret out any terrorists. SPOT has helped of TSA employees will provide savings for the employees will
arrest 2,000 criminals since 2003, but none taxpayer without reducing aviation security.
have been charged with terrorism.93 Encour- Contract screeners are already employed at
provide savings
aging behavioral screening may produce over a dozen airports under the Screening for the taxpayer
more nonterrorism arrests, but it will also Partnership Program (SPP).98 BearingPoint, without reducing
produce false positives that burden the fly- a management and consulting contractor,
ing public with the prospect of detention conducted a study of the SPP airports and aviation security.
and law enforcement investigation, all based found that those screeners performed con-
on the hunch of a TSA screener. And as the sistent with or better than TSA screeners,
Bierfeldt and Parker cases demonstrate, while screening costs were marginally re-
these hunches may be based on poor judg- duced in most cases.99 TSA has consistently
ment and exceed the TSA’s limited aviation argued that private sector screeners would
security mission. be more expensive, but the GAO questioned
TSA mission creep is not limited to air- the TSA’s methodology in comparing air-
ports, as trains, buses, boats, and subways port screening costs.100
may soon have airport-style security.94 Plac- Allowing airports the latitude to organize
ing checkpoints on these other forms of and manage their own security will further
mass transit also represents a costly reversal increase performance. The GAO response
of policy. Former secretary of Homeland Se- to the TSA pilot program assessment found
curity Michael Chertoff opposed expansion that while “TSA officials said they had not
of airport procedures to bus and train termi- granted contract officials more flexibility be-
nals after the London commuter bombings cause they wanted to ensure that procedures
because of the insurmountable cost of de- were standardized, well coordinated, and
fending an enormous number of transit tar- consistently implemented throughout all
gets.95 The trial deployment of a joint DHS airports to achieve consistent security,” the
team to a Tampa bus station gave a preview of airports employed practices that “enabled
what expanded TSA jurisdiction would look the private screening contractors to achieve
13efficiencies that are not currently available at cent congressional study highlighted the use
airports with federal screeners.”101 of the National Deployment Force, a pool of
Private passenger screening will also re- TSA screeners that deploy to offset seasonal
duce costs because of the two-tier security demand and other labor shortages at non-
in place; while TSA employees conduct the SPP airports, at significant additional cost
bulk of passenger screening, cargo screening to cover travel expenses.110 Allowing TSA
and other aviation security duties remain screeners to engage in collective bargaining
the responsibilities of airports. Removing will further hamper the ability of that bu-
this artificial separation of responsibility reaucracy to adapt to changing circumstanc-
would allow airports to reduce costs further. es. Congress should privatize airport screen-
ing rather than see it burdened by collective
Unionization Will Not Improve Aviation bargaining.
Security
Unfortunately, the TSA is limiting the Real Privatization
Screening Partnership Program to the 16 air- Real privatization would not, however,
ports currently involved,102 and TSA screen- merely consist of expanding the Screening
ers are unionizing.103 Unionization of airport Partnership Program. In SPP airports, TSA
security will put a flawed set of incentives in picks the contractor that will provide screen-
place: if employees know that they can be ing services, pays the contractor, and ensures
fired for ineffectiveness in screening, they are that the contracted screeners apply TSA
more likely to remain alert. The same cannot screening protocols.111 Real privatization
be said for federal employees, who are notori- would allow airports and airlines to decide
ously hard to fire.104 Indeed, a recent analysis who will provide passenger screening and pay
by USA Today found that some workers are for security with private, not public, funds.
more likely to die of natural causes than get The biggest obstacle to re-privatization
laid off or fired.105 of airport security is that private aviation
Just as it has harmed Customs and Bor- stakeholders—airlines, airports, and screen-
der Protection (CBP), unionization will ing contractors—do not want to bear legal
weaken aviation security. The Federal Labor responsibility for a terrorist attack. With re-
Relations Authority (FLRA), the appellate gard to liability, there are two options facing
authority for collective bargaining arbitra- policymakers. If aviation security liability
tions, has gone overboard in upholding must be limited in order to move toward a
CBP employee grievances on basic issues of free market model, Congress has already cre-
performance and discipline. For example, ated a path for doing so. Airports and secu-
the FLRA upheld an arbitrator’s decision to rity contracting firms can apply for certifi-
overturn a three-day suspension for falling cation under the Support Anti-Terrorism by
asleep on the job.106 The FLRA also upheld Fostering Effective Technologies (SAFETY)
an employee grievance against changing the Act, a federal law that limits their liability.112
number of hours of remedial firearms train- The better answer is that airport and air-
A recent analysis ing when a Border Patrol agent is deficient in line liability should not be capped. Limiting
by USA Today firearms qualification.107 liability handicaps the market incentives
found that some CBP is also required to negotiate with that provide for effective security. The insur-
union representatives on the reassignment ance industry and businesses in general have
federal employees of employees, a problematic requirement adapted to terrorism. A recent insurance
are more likely in the aviation security context.108 Air carri- study found that 27 percent of businesses pur-
ers already move faster than the TSA when chased terrorism insurance in 2003, whereas
to die of natural changing schedules and volume on routes, 61 percent purchase it now.113 Terrorism in-
causes than get creating a local surplus or deficit of screeners surance rates have dropped consistently since
laid off or fired. until the TSA can shift employees.109 A re- the 2001 attacks, and firms can now insure
14a $303 million property for $9,541 per year, portional, moving from 10 percent coverage Arming pilots is
a small fraction of total insurance costs.114 to placing air marshals on all flights would a cost-effective
The commercial aviation industry can—and cost $8.6 billion annually—more than is cur-
should—provide its own security. rently spent on the whole of the TSA. alternative to air
One study, which assumed air mar- marshals.
Air Marshals versus Flight Deck Officers: shal presence on 10 percent of all flights,
A Cost-Benefit Analysis of Deterrence still found that the cost per life saved was
Aviation security funding is often mis- $180 million, far more than the $1 million to
spent. The federal government allocates funds $10 million that the Office of Management
for armed personnel on passenger flights and Budget recommends. Hardened cockpit
through two programs: (1) the Federal Air doors proved more cost-effective, with an es-
Marshal Service (FAMS), and (2) the Federal timated $800,000 spent per life saved.119
Flight Deck Officer (FFDO) program, which Arming pilots is a cost-effective alterna-
arms pilots to repel hijackers.115 The idea of tive to air marshals. Commercial pilots have
having an air marshal present to deal with volunteered in significant numbers for the
any terrorist attack on passenger aviation is FFDO program, only to face repeated bu-
attractive. Unfortunately, the reality is that reaucratic obstacles.120 Seventy percent of
air marshals cost too much to protect even a commercial pilots have military experience
small fraction of aviation traffic, and terrorist with firearms.121 And while the training re-
attacks on aviation have largely moved away quirements for FFDO status are lower than
from hijacking to bombing. Federal counter- those for an air marshal, the FFDO role is dif-
hijacking efforts should focus on arming pi- ferent; he or she is merely trying to prevent
lots and abolishing FAMS. terrorist access to the cockpit, a much simpler
The number of air marshals increased task than the arrest of hijackers in the pas-
from 33 in 2001 to an undisclosed number senger compartment. Economist John Lott
in the thousands over the last nine years (the notes that “terrorists can only enter the cock-
actual number of air marshals is classified). pit through one narrow entrance, and armed
The Federal Air Marshal Service has pro- pilots have some time to prepare themselves
duced little on such a large investment, and as hijackers penetrate the strengthened cock-
the service can be cut without negatively af- pit doors.”122 The firearm storage policy im-
fecting aviation security. The service averages posed on FFDOs, which requires them to put
4.2 arrests each year, and current appropria- a padlock through the trigger guard of the
tions are $860 million, meaning that each ar- handgun while it is in its holster, creates the
rest costs an average of $215 million.116 foreseeable risk of pressing the trigger against
To be sure, arrests are not the only metric the lock and has already caused one acciden-
that matters; the potential of having a police tal discharge in the cockpit of an airliner.123
agent trained in rapid close-quarters marks- This requirement should be removed and
manship is itself a deterrent to hijacking. the FFDO program expanded (or the certi-
But the deterrent achieved must be weighed fication for arming pilots simply left to the
against the cost. With air marshals covering airlines) to provide additional deterrence to
no more than 10 percent of the passenger would-be hijackers at significantly reduced
flights in the United States, policymak- expense. TSA spends $25 million each year on
ers must consider whether $860 million is FFDO and crew training and $860 million on
worth (at best) a one-in-ten chance of hav- air marshals.124 Congress should abolish the
ing an air marshal present to counter any Federal Air Marshals Service. If airlines be-
particular terrorist plot.117 Post-9/11 pro- lieve that this program is worth funding, they
posals to place, as Israel has, air marshals should be free to replicate it on their flights,
on all flights, would prove exorbitantly ex- passing the cost on to their passengers—and
pensive.118 Assuming that costs remain pro- not the taxpayers.
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