Spurred on by the devastation of Hurricane Katrina, both the House of Representatives and the Senate have drafted competing bills with the same goals: removing FEMA from the grip of DHS and restoring its independent agency status.
Will FEMA remain where it is now, or will it once again be an independent agency? How did we get into this mess?
The Homeland Security Act of 2002 Disabled FEMA
In July 1979 President Jimmy Carter created FEMA as an independent agency of the federal government’s executive branch. Executive Order 12148 merged into FEMA several disaster-response agencies, including the Federal Insurance Administration, National Fire Prevention and Control, and Housing and Urban Development’s Disaster Assistance activities.
For more than two decades FEMA operated as an independent agency. After September 11th, however, Congress passed the Homeland Security Act of 2002 (HSA). As a result of its passage, control of FEMA’s operations moved to the newly created DHS in March 2003 and FEMA’s role was redefined; it became a second-tier agency in DHS, and much of its authority was removed.
While its organizational structure was kept intact, much of FEMA’s authority was stripped and given to the newly created Directorate of Emergency Preparedness and Response (EPR) of DHS.
Besides making FEMA responsible for carrying out what was known as the Federal Response Plan, this section of the HSA also dictated that FEMA be responsible for preparedness, mitigation and response for “all hazards” facing the United States of America. Unfortunately for the agency and for U.S. citizens, the HSA specified no legal definition for all hazards, although this blanket approach appears to be in direct conflict with another section of the HSA.
The HSA also created the Office for Domestic Preparedness (ODP), whose primary responsibility was to prepare for and respond to terrorist-related disasters in the United States. This new organization, unlike FEMA, was placed within the Directorate of Border and Transportation Security of DHS. The language of this section spells out yet another version of primary responsibility for FEMA: “to prepare for and mitigate the effects of nonterrorist-related disasters in the United States….”
As it was enacted, then, the Homeland Security Act of 2002 set out conflicting roles for FEMA, contrary to its intended purpose as established by President Carter in 1979.
The 2SR Plan: “Let’s Use the Heritage Foundation Report!”
Michael Chertoff introduced his 2SR to the public on July 13, 2005, with his opening remarks focused solely on terrorism:
Together, we gather once again in the shadow of a despicable act of terrorism. Make no mistake — the terrorists seek to destroy not only our lives, but our entire way of life. Our hearts and our prayers go out to the British people and everyone who suffered a loss in this barbaric attack that occurred several days ago.
For most Americans, last week’s attacks in London were a sobering and jarring reminder of the threats we now face. But for my fellow employees here at DHS, facing those dangers and reducing those threats is a daily responsibility. In his remarks about the London attacks, President Bush captured the essence of what motivates these outstanding men and women when he said, “The terrorists cannot shake our will. America and its allies will act decisively, because we know that the future of civilization is at stake in this struggle, and we know that the cause of freedom will prevail.”
…
So we ask: What exactly are the next steps at DHS as we continue to make the homeland more secure? To help answer that question, shortly after taking office at Homeland Security, I launched the Second Stage Review — a systematic evaluation of the Department’s operations, policies and structures.
What happens when a right-wing “policy” think tank’s recom- mendations for a governmental emergency-management agency are followed without careful consideration of those 10 critical infrastructures the think tank sees as “not truly vital to the federal government’s functioning”?
Find out...
This report presents the conclusions of a task force charged with examining the organization and operations of the U.S. Department of Homeland Security (DHS). The task force included representatives from academia, research centers, the private sector, and congressional staff and was chaired by homeland security experts from the Center for Strategic and International Studies and The Heritage Foundation.
And the Heritage Foundation, pleased as punch, is taking credit for inspiring Chertoff’s 2SR plan, as stated in its Web site article “Chertoff Takes Charge”:
On July 13, Department of Homeland Security (DHS) Secretary Michael Chertoff announced the completion of his “Second Stage Review,” a comprehensive assessment of the Department’s missions, organization, and resources, and described a plan to restructure the Department based on the review. Chertoff’s proposals to reform DHS are spot on and address virtually every issue and recommendation in DHS 2.0 Rethinking the Department of Homeland Security, a joint report by The Heritage Foundation and the Center for Strategic and International Studies.
What About the People?
The Heritage Foundation/CSIS/Chertoff reorganization plan failed to appropriately prioritize the needs of people directly affected by disasters. A summary of the Heritage Foundation’s DHS 2.0 calls for:
… establishing a “flatter” organizational structure through (1) consolidating and strengthening agencies with overlapping missions; (2) eliminating middle-management (directorate) layers over border and transportation security, preparedness and response, and information analysis and infrastructure protection; and (3) having the agencies report directly to the secretary via the Deputy Secretary of Homeland Security.
Another report [.pdf] from the Congressional Research Service regarding Chertoff’s proposal for changes to the Emergency Response Preparedness Directorate points to the focus on the protection of critical infrastructure. From pages 2 and 3 of that CRS report:
Secretary Chertoff’s 2SR recommendations reflect elements of a similar proposal presented in a report issued at the end of 2004 by the Heritage Foundation. The report included a recommendation to consolidate “critical infrastructure protection, preparedness, and state/local/private coordination efforts under an Undersecretary for Protection and Preparedness.”
And from page 36:
At a hearing held in the opening days of the 109th Congress, an author of the Heritage report that reportedly stimulated much of the 2SR process spoke to the separation of homeland security preparedness activities from response, as follows.
I would argue for a clear division of responsibilities between operators and supporters…. Preparedness and response, I think, is one of them. Response is clearly an operational function. You want the guy who’s in charge of response to be ready to respond, to be thinking about responding and have that be the sole focus of the organization commission. Preparedness, on the other hand, you could argue, is a support function.
Many “backgrounder” research reports on the Heritage Foundation’s Web site suggest that Chertoff’s 2SR plan came directly from the Heritage Foundation/CSIS research, one of which is “Who’s on First? A Strategy for Protecting Critical Infrastructure,” a report arguably concluding that human death and suffering are immaterial to the Heritage Foundation/CSIS/Chertoff 2SR plan except as a source of liability risk. “Who’s on First?” decides that, of 14 of the standard accepted critical infrastructures, the focus of reorganization should place emphasis on only four:
The current list of critical infrastructure is too expansive, including sectors that are not truly vital to the federal government’s functioning. The federal government has a vested interest in only the energy, finance, telecommunications, and transportation sectors.
What of the other critical infrastructures — those that are left out now? Here are the remaining 10:
- Chemicals sector
- Continuity of Government Services sector
- Emergency & Law Enforcement Services sector
- Fire Services sector
- Food sector
- Health Services sector
- Higher Education sector
- Insurance sector
- Water sector
Government Services? Emergency & Law Enforcement Services? Fire Services? Health Services? Food and Water? Not so important in the Heritage Foundation/CSIS/Chertoff reorganization plan. In the wake of Hurricane Katrina, could any of these 10 not-so-critical infrastructures have been key in the DHS/FEMA failure to respond? [See the sidebar, “Decisions and Consequences.”]
What Will Happen to FEMA?
Because of stipulations set forth in the Homeland Security Act of 2002, certain changes in the structure of the Department of Homeland Security require legislation of the changes by Congress.
Five bills are currently sitting in committee — four in the House, one in the Senate — in direct opposition to the Heritage Foundation/CSIS/Chertoff 2SR plan, as each calls for the removal of FEMA from DHS. [See the supplementary article, “Congress Responds to Katrina: Five Bills to Take FEMA Back.”]
The 2SR plan, of course, keeps FEMA within DHS, directly under his control. However, in order for significant portions of that plan to be implemented, Congress will have to enact legislation that supports it.
According to an updated Congressional Research Service report [.pdf] from August 9, 2005, addressing the DHS Secretary’s authority to implement a reorganization plan:
- Elevating the Assistant Secretary for the newly created Office of Policy to an Under Secretary;
- Eliminating the position of Under Secretary for Border and Transportation Security; and
- Requiring the Director of FEMA to report directly to the Secretary of DHS, rather than the Under Secretary for Emergency Preparedness and Response.
In DHS, all the current directorates were established by statute. Accordingly, it would appear consistent with the presumed intent of Congress that completely new directorates also be established by statute. Moreover, because the directorates currently in place at DHS all contain agencies, bureaus, and other large entities, it is would seem that establishing a new directorate is something beyond establishing an organizational unit. Establishing a new directorate, therefore, would seem to need authorizing legislation, and presumably, that is what the Secretary might be doing in his attempt to seek legislation for the elevation of the Assistant Secretary position to an Under Secretary.
What will happen to FEMA remains to be seen. However, a showdown between those who have already introduced legislation stripping the agency from DHS and restoring its independent status, and the congressional lobbying efforts of the Heritage Foundation and CSIS in support of their 2SR plan as presented by DHS Secretary Chertoff, looms on the horizon.
Research and writing: Wanderindiana, Luaptifer, HeyThereItsEric and Kfred.
Contributors: BarbaraS, Kfred, SawcieLackey, Sue in KY, Susie Dow, Cho, JeninRI, Standingup, Beverly in NH, XicanoPwr
Photographs: © 2005 by, and used with the permission of, Sheldon Morton / World Eye Press
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