HLS404:

Lesson 1 - The Statutory Basis for Implementing Homeland Security Measures

Lesson Overview (1 of 9)
Lesson Overview

Lesson 1 - The Statutory Basis for Implementing Homeland Security Measures

Welcome to the beginning of an entirely new domestic and international landscape regarding what we Americans refer to as Homeland Security. The term carries numerous connotations, as you have likely already experienced.

To many terrorism experts, the success of the 9/11 terrorists was the direct result of decades of US Government (USG) neglect to the unfolding events across the globe against Americans and American interests. From a lack of Legislative Branch legislation regarding combating terrorism (both counter- (offensive measures) and anti- (defensive measures)) to a lack of support to Executive Branch policies/directives and executive orders, the security situation on 9/11 was not what decision-makers at every level would have desired. For those students currently enrolled or having completed PADM 401, the pre-9/11 strategic setting may now be completely etched in your minds. If not, I suggest a brief review of the Executive Summary of the 9/11 Commission Report. Once you feel familiar with the Findings of the Commission, you'll be ready to fully understand the key tenets of this lesson.

As the title indicates, this lesson focuses on the key, federal-level statutes that establish the legal (statutory) basis for implementing the vast array of Homeland Security initiatives and activities. Although there are many others, these statutes form the foundation upon which all others build.

Lesson Objectives:

At the conclusion of this lesson, you will be able to:

Please complete readings and assignments as listed on the course schedule.

Research | Study Guide (2 of 9)
Research | Study Guide

Research | Study Guide

Scan the Title and Section descriptions of following federal statues:

This is not meant to be a memorization drill; Homeland Security officials work with these statutes on a daily basis - constantly referring to them for Congressional intent and specified tasks. Gain a general familiarity of the topics addressed in each of the 5 readings. We will repeatedly return to specific sections of each throughout the course.

As you discern the key tenets/tasks directed by the Congress to the Executive Branch, keep in mind the authority provided to the POTUS regarding how the law is to be enforced. The various rules & regulations implemented by the Executive Branch sometimes cause more angst among Americans than the laws themselves.

Review previous readings and other individual research notes to establish a frame of reference/context for this lesson. Review the Graded Assignment to determine the specified topics; focus on those primarily as you proceed through the readings.

Capture your questions/comments for the Discussion Forum and Graded Assignment as you proceed through the Required Readings and any independent research.

Maintain an open/receptive mind as you discuss contentious issues; not everyone shares the same views. It's generally acceptable to attack an idea, but never the individual delivering it.

Be prepared to collaborate with/assist other students.

Getting Started (3 of 9)
Getting Started

Getting Started:

Welcome to the gray and ever-changing world of Homeland Security. You are not alone in your thoughts that some of the security-related deficiencies existing on 9/11 can be easily solved; your colleagues, however, may not be so quick to agree with you. When in doubt, trust your instincts, perceptions and research as you formulate your own base of knowledge and use it in future lessons. Great ideas never go out of style – they simply need to incubate until the time is right for the decision-makers to assess, appreciate and accept them!

Beginning with this lesson, we’ll start the sometimes-tedious but never boring process of studying, analyzing and assessing 4-four key federal statutes codified in the aftermath of the tragic events of 9/11. As you learned in high school, the Congress passes laws and the POTUS signs them into law. The Executive Branch (those departments/agencies under the POTUS' authority) then develops and issues rules and regulations to carry-out the intent of legislation enacted by the Congress.

Additionally, as you remember from previous Homeland Security courses, our federal departments/agencies only have authority to execute those tasks and responsibilities codified in law. Thus, every level of government - federal, state, county and local unit of government - derives its authority and responsibilities from both federal and state laws.

In this course, we will not explore state laws, however. At the federal level, these laws are compiled in the United States Code. At state level, they are generally compiled in state statutes. At territory, tribal entity, county and municipality levels, they may be referred to as ordinances, regulations, etc.

Do you know the correct designation of your local laws?

The United States Code (USC) is the codification by subject matter of the general and permanent laws of the United States. It is divided by broad subjects into 50 titles and published by the Office of the Law Revision Counsel of the US House of Representatives (HR). Since 1926, the Congress publishes the USC every six years. Between editions, the HR publishes annual cumulative supplements to present the most current information.

These 4-four acts form the basis for the majority of presidential vision/policies, decision directives, executive orders, national strategies, plans and programs used to direct and/or guide and implement Homeland Security measures across our public- and private-sectors. As you read and study each, try to capture the essence of the main points – these may not always be obvious.

When in doubt, give it a rest and then return with a clear mind. The more you study, the more obvious the main points become. The Sub-topic sections will also cover these below; use the hyperlinks to expedite your research and study. In your previous Homeland Security-related courses, you may have explored these in detail. If not, we’ll do so in this lesson.

One last note prior to getting into the Lesson: Many of you may not be acquainted with the pre-9/11 roles & responsibilities of the federal government, states, counties and local units of government re: border security, aviation security, intelligence and information-sharing, public safety, emergency response, etc. Hopefully, you will re-visit your perceptions/views on these subjects and form a new perspective. Throughout your review/analysis of the statutes in particular, remain aware of these key points:

USA PATRIOT Act of 2001 (4 of 9)
USA PATRIOT Act of 2001

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001

Congress enacted the USA PATRIOT Act of 2001 by overwhelming, bipartisan margins, arming law enforcement with new tools to detect and prevent terrorism. Congress passed the act nearly unanimously (Senate 98-1 and HR 357-66) with the support of members from across the political spectrum. The impact of the act's newly-mandated and authorized tasks still reverberates today. The Department of Justice (DOJ) and the law enforcement community writ large are the main beneficiaries of the new tools provided to law enforcement agencies. Depending on your personal beliefs, you may see this act as overstepping the lines of civil liberties and personal privacy. Time will tell. In the meantime, the act remains the law of the land.

The latest amendment to the act is Public Law 109-178, 9 March 2006 if you are interested.

The DOJ's first priority is to prevent future terrorist attacks. Since its passage following the 9/11 attacks, the USA PATRIOT Act has played a key, and often leading role, in a number of successful operations to protect innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life. While the results have been important, in passing the act the Congress provided for only modest, incremental changes in the law. Congress simply took existing legal principles and retro-fitted them to preserve the lives and liberty of the American people from the challenges posed by a global terrorist network.

Additional Resources on the USA PATRIOT Act:

Summary

The USA PATRIOT Act of 2001 contains 10 chapters or, in statutory terms - Titles. Titles comprise sections. Focus on the definitions and the activities codified (i.e., authorized by law) when you review this act. Develop your own 1-sentence summary of each of the 10 titles, capturing the essence of the each. Your words will be easier to remember than any summary provided by another source.

See Highlights of the USA PATRIOT Act, to assist in your research.

Homeland Security Act of 2002 (5 of 9)
Homeland Security Act of 2002

Homeland Security Act of 2002 as amended through P.L. 112–265, enacted 14 January 2013]

In the Homeland Security Act of 2002, Congress established a new department within the Executive Branch – the Department of Homeland Security (DHS) - and mandated its roles, functions and authorities. Although most of the 22 agencies brought under the DHS were previously resident in other departments, Congressional intent was clear: Collective orchestration of the roles, functions and activities of each needed to be under the control and authority of a single cabinet-level secretary.

Many critics posit that the DHS is too large to be efficiently orchestrated by a single secretary. Why this conclusion is different from the Department of Defense (DoD) is anyone's guess; the DoD is certainly much larger. You will form your own opinion as this course proceeds.

The HSA 2002 as amended by the Implementing Recommendations of the 9/11 Commission Act of 2007 establishes the DHS as an executive department of the US, headed by a Secretary of Homeland Security (SECHS) appointed by the POTUS, by and with the advice and consent of the Senate, to:

  1. "Prevent terrorist attacks within the United States;" (terrorism-related function)
  2. "Reduce the vulnerability of the United States to terrorism;" (terrorism-related function)
  3. "Minimize the damage, and assist in the recovery, from terrorist attacks that occur within the United States;" (terrorism-related function)
  4. "Carry out all functions of entities transferred to DHS;" (synchronization-related function)
  5. "Ensure that the functions of the agencies and subdivisions within DHS that are not related directly to securing the homeland are not diminished or neglected except by a specific Act of Congress;" (sustainment of previously-directed functions)
  6. "Ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland;"
  7. "Monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking." (terrorism-related function)

The act vests primary responsibility for investigating and prosecuting acts of terrorism in federal, state, and local law enforcement agencies with proper jurisdiction except as specifically provided by law with respect to entities transferred to DHS under this act.

Summary

In future lessons and beyond your formal education at Penn State University's World Campus, you will likely return to this act for additional guidance and insight. Do yourself a favor now and save time later; develop a Summary – either on your computer Desktop or in a separate written document – that highlights the main points as you did in the USA PATRIOT Act of 2001.

Intelligence & Analysis

The act directed the structure, roles and functions of the Intelligence & Analysis mechanism to be used by the newly-formed DHS. Study this section and be capable of articulating, in general terms, the primary focus and process partners.

Identification and Protection of Critical Infrastructures

Initially codified in the USA PATRIOT Act of 2001 as the Critical Infrastructures Protection Act of 2001, this act incorporated Congressional intent and directed the establishment of the Office of Infrastructure Protection. Study this section and be capable of articulating the structure, roles and functions. In addition, identify any mandated requirements for the states, tribal entities and territories regarding critical infrastructure protection activities.

Funding for Homeland Security-related Activities

The Implementing Recommendations of the 9/11 Commission Act of 2007 amended this act to establish the Homeland Security Grant Program and its three sub-grant programs for funding Homeland Security-related activities and initiatives. The main sub-grant programs supporting DHS activities and initiatives on which we'll focus are the:

  1. State Homeland Security Grant Program (SHSGP)
  2. Urban Area Security Initiative (UASI)

Study the appropriate sections and be capable of articulating the general guidelines for funding these activities.

Intelligence Reform and Terrorism Prevention Act of 2004 (6 of 9)
Intelligence Reform and Terrorism Prevention Act of 2004

Intelligence Reform and Terrorism Prevention Act of 2004

In the aftermath of 9/11, the world’s attention turned to the collective group of intelligence agencies (both foreign and domestic) for answers as to why the tragic events could not have been foreseen – if not in actual modus operandi, then certainly by adversarial intent. Conjecture continues today as to what information was known, by whom, and to what extent it was shared, analyzed and reported to those potentially-impacted. Such finger-pointing will continue ad nauseam, as is our nature, until those agencies involved – whether foreign or domestic – feel the pressure to change their internal operating procedures. This, unfortunately, may likely never change to the extent intended by the Congress.

In codifying the Intelligence Reform and Terrorism Prevention Act of 2004, Congress intended, above all, to end the existing parochialisms existing within and among the US' de facto intelligence community (IC) (headed at the time by the Director of Central Intelligence) and establish an information-sharing system that would facilitate information and intelligence flow not only horizontally among the federal IC but also vertically connecting federal IC with local units of government - the key players in whose jurisdictions the nation's critical infrastructures and key resources reside (CIKR). This may prove to be the greatest challenge derived from the plethora of analysis and assessments of the 9/11 events. The arguments - pro and con - are all well-founded, sound, logical and based on lessons learned as far removed as WW II. This is what makes the issue so dynamic and difficult to resolve.

There are 8 Titles in this act, each focusing on some contributing factor towards the overall Goal - Intelligence Production, Dissemination and Early Warning. Production without dissemination is useless as you may surmise. Dissemination to non-impacted stakeholders also serves no purpose. Nonetheless, dissemination to the potentially-impacted stakeholders still constitutes the greatest challenge. You will understand this dilemma the more you appreciate the arguments related to information-sharing. Keep an open mind!

Duties and Responsibilities of the Director of National Intelligence

To gain an overall sense of the plethora of tasks charged to this Senate-confirmed appointee, read Title I. Highlight those major tasks/functions you feel are the major ones contributing to overall information/intelligence orchestration, production and sharing. Pay particular attention to any tasks related to sharing information/intelligence with state and local units of government.

The Intelligence Community

To understand how national intelligence collection, production and dissemination works, you must understand those federal agencies charged by the Congress with collection, production and dissemination. Read the pertinent Titles and be capable of articulating the member agencies comprising the IC. More importantly, you need to understand the focus of each of the 17 agencies comprising the IC (e.g., CIA = Foreign Intelligence, FBI=Domestic Intelligence, NRO=satellites, etc.). For a detailed perspective of each member agency's role, visit the ODNI's Member's of the IC page.

In order to better understand how the Legislative and Executive Branches arrived at the current structure of the IC, it is also best to become familiar with the historical basis/genesis of the IC. Review this short overview for a holistic perspective: The Evolution of the U.S. Intelligence Community - An Historical Overview.

The Information-Sharing Environment

To understand how finished intelligence reaches the state and local units of government users, you need to understand the overall concept for the Information-Sharing Environment (ISE). Read and become familiar with this concept and its associated players and functions. The ISE has its own website for those seeking a more in-depth understanding, visit the Information-Sharing Environment's homepage..

Security Clearances

Of all the reasons cited for not sharing information/intelligence, none have received more media attention than that of security clearances. Study Title III and be capable of articulating the major tenets of this act regarding Security Clearances. In particular, pay close attention to “Reciprocity of Security Clearance and Access Determinations.” In your opinion, will this law solve the problem?

Implementing Recommendations of the 9/11 Commission Act of 2007 (7 of 9)
Implementing Recommendations of the 9/11 Commission Act of 2007

Implementing Recommendations of the 9/11 Commission Act of 2007

To provide for the implementation of the recommendations of the National Commission on Terrorist Attacks Upon the United States, Congress crafted this act. Appreciating the examination of the 9/11 events, Homeland Security activities since codification of the USA PATRIOT Act of 2001 and the establishment of the DHS in Homeland Security Act of 2002, the 9/11 Commission rendered its report – complete with findings and recommendations – to the President, Congress and the American people.

Congress analyzed and assessed the 9/11 Commission Report and passed this legislation based on its appreciation of the Findings and Recommendations and how/if corrective measures should/could be designated and shaped. Note: The Congress did not incorporate all the recommendations of the 9/11 Commission into this legislation.

The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks Upon the United States

It will be worth your time to scan the full report since many of today's Homeland Security-related initiatives derive their genesis from this legislation. The key Findings and Recommendations can be found in the Executive Summary. Be capable of articulating these and tracking either their inclusion or omission from the act.

Improving Intelligence and Information-Sharing within the Federal Government and with State, Local and Tribal Governments

As expected, the 9/11 Commission Report indicated serious deficiencies regarding information-sharing. Title V of this act addresses this deficiency by defining the “Role of intelligence components, training, and information sharing.” Study this section and be capable of articulating these roles.

Student Learning Tasks | Graded Assignment (8 of 9)
Student Learning Tasks | Graded Assignment

Student Learning Tasks | Graded Assignment

Type Correspondence: Information Paper

As the title of this course indicates, this graduate-level course is designed to use the knowledge gained from your research and analysis in notional situations. Throughout this course, you’ll be tasked to perform tasks routinely associated with Homeland Security practitioners at various levels of government.

Title: "The Post-9/11 Legal Basis for Homeland Security Initiatives"
Recipient: Newly-appointed State Director of Homeland Security
Situation:

You are the Administrative Officer in your state's Department of Homeland Security. The newly-appointed, incoming Secretary has tasked you to provide an Information Paper highlighting the four-4 pertinent, federal, legislative references forming the post-9/11 legal basis for implementing the current array of Homeland Security-related initiatives. In particular, the incoming Secretary has asked for special emphasis on critical infrastructure protection, the Homeland Security Grant Program, composition of the IC, composition of the ISE and any intelligence-related findings from the 9/11 Commission Report.

Specified Tasks/Topics:

In order to successfully complete this assignment, you must demonstrate an understanding of the four major statutes forming the legal basis for implementing today’s Homeland Security initiatives (thus, the main topics of this paper) by addressing, at a minimum, the following highlights covered in those acts:

Summary (9 of 9)
Summary

Summary

With these four critical pieces of legislation, the Congress established a foundation and mandate for all current and emerging Homeland Security activities and initiatives. These statutes profoundly affect pursuant Executive Branch vision, policies, directives, executive orders, national strategies, plans, programs and emerging initiatives. Particularly noteworthy is the State Homeland Security Grant Program, a sub-program of the overall Homeland Security Grant Program, which provides the basis for funding mechanisms to enable supporting state-designated Homeland Security strategies and associated plans and programs.

The importance of these four acts cannot be overly stressed. As a student now, and later as a potential practitioner, you will continually return to these shapers of Homeland Security strategy for clarity, intent and an even greater sense of understanding regarding what the term Homeland Security encompasses – and what it does not.

If you have never studied federal statutes previously, then this has been a difficult lesson indeed. You are studying new subjects, written in a different, professional language by Congressional staffers. It is understandable to be somewhat overwhelmed at this point. Relax and be assured that by the end of the course, you will feel comfortable with these types of documents.


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