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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. 

The Early Days

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. 

National Security Act of 1947

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. 

9/11

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. 

U.S. Commission on National Security/21st Century and Presidential Study Directive 1

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.”

National Security Strategy (2015)

This trend has been reinforced by the National Security Strategy of 2015 (https://obamawhitehouse.archives.gov/sites/default/files/docs/2015_national_security_strategy.pdf) that among other things combines a call to strengthen national defense with a call to reinforce homeland security. 

Based on prioritization of efforts "that address the top strategic risks to our interests," the new National Security Strategy lists "Catastrophic attack on the U.S. homeland or critical infrastructure" first (p. 2).

The Strategy also argues that homeland security is a prerequisite for national security. Pointing out that "the United States government has no greater responsibility than protecting the American people" (p. 7), the National Security emphasized the importance of "reinforcing homeland security" in a overall effort to make to nation capable to act at home and abroad to deliver security to the citizens in a comprehensive approach – with a notable focus on law enforcement aspects:

"Our homeland is more secure. But, we must continue to learn and adapt to evolving threats and hazards. We are better able to guard against terrorism – the core responsibility of homeland security – as well as illicit networks and other threats and hazards due to improved information sharing, aviation and border security, and international cooperation. We have emphasized community-based efforts and local law enforcement programs to counter homegrown violent extremism and protect vulnerable individuals from extremist ideologies that could lead them to join conflicts overseas or carry out attacks here at home. Through risk-based approaches, we have countered terrorism and transnational organized crime in ways that enhance commerce, travel, and tourism and, most fundamentally, preserve our civil liberties. We are more responsive and resilient when prevention fails or disaster strikes as witnessed with the Boston Marathon bombings and Hurricane Sandy." (p. 8)

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