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Lesson 1: Origins and Context of U.S. Homeland Security Law

The Difference between National Security and Homeland Security

Security of  citizens, their values, and their homeland has traditionally been a paramount reason for a controlling authority or government agency in some form within the U.S.  The functioning of that entity has included legal processes tied to the mission of providing security.  Depending on the perspective and jurisdiction, the authority could have an external national security function, or it could be focused internally on homeland security. 

Between 1607 and 1776, early colonialists relied in part on Great Britain, which provided security with a two edged sword, but for the most part, they assumed the risk of threats in return for freedom.  Vital interests of survival, prosperity and values can be traced to Jamestown, and the rudimentary civil organization put in place there to provide such security.  After the Constitution was ratified and the U.S. federal government assumed the role of providing for the common defense, the national security establishment slowly emerged, after 1789, in response to evolving threats and retained primarily an external focus.  Force, diplomacy, and intelligence were directed globally. 

The National Security Act of 1947, and follow-on statutes and policies, ensured that the separation would remain between the domestic and the external use of instruments of statecraft, whether Intelligence or military force.  That separation satisfied the concerns of those who wished to keep traditional national security activities removed from domestic involvement where such action could infringe on freedoms.  The national security apparatus evolved into a top-down, centralized, secretive, externally oriented enterprise.  Responses to domestic matters, especially natural disasters, were left, for the most part, to state and local authorities with minimal assistance from federal entities. 

After 9/11, with the rapid development of homeland security organizations and legal authorities, much of the focus changed, with increased pressure to share information among Intelligence and law enforcement agencies, and to use executive branch capabilities in support of civil authorities.  And, most notably, the Department of Homeland Security has a major counter-terrorism role in both a domestic and international context.  In contrast to the national security establishment, the emerging homeland security enterprise can be characterized as local, bottom-up, decentralized, and transparent in nature. 

Obviously the distinction between national and homeland security continues to blur, and from a legal point of view, laws are laws.  In 2001, the U.S. Commission on National Security/21st Century, the Hart–Rudman Commission, proposed creating a National Homeland Security Agency that would address all security concerns.  In the post Cold War environment of 9/11 and Katrina, there has been a lessening in the distinction of the roles and missions of national and homeland security.  In Presidential Study Directive – 1, President Obama proclaimed that, “Homeland Security is indistinguishable from National Security – conceptually and functionally, they should be thought of together rather than separately.”


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