The 20-Year Boondoggle
This article features Government Accountability Project Of Counsel, David Seide, and was originally published here.
9/11, while the country was still reeling, a series of letters began arriving at news organizations and Senate offices. The envelopes were innocuous, indistinguishable from other mail, but inside was a white powder, a rare bacteria that can be fatal if inhaled — anthrax. Five people died, and 17 were sickened in one of the most deadly biological attacks in US history. Yet anthrax had the potential to inflict far more harm: if the spores had been released from a rooftop in downtown Washington, DC, it might have infected hundreds of thousands of people. One letter included the message, “DEATH TO AMERICA,” perhaps indicating more to come. But how could we plan for a silent, odorless killer?
Responding to the universe of new threats facing the country soon became an all-out scramble, consuming the public and the federal government’s attention for several years. The man that President George W. Bush chose to manage America’s preparation for a chemical, biological, radiological, or nuclear incident was a renowned physicist and weapons expert named Penrose “Parney” Albright.
Albright is exactly the kind of guy you’d want in charge of protecting the country from a devastating attack. Known for his candor and ingenuity, he is one of those people with a talent for both hard science and political science. He had excelled at places like the Defense Advanced Research Projects Agency (DARPA) because he knew how to bring big, complex projects across the finish line.
So as the Bush administration finalized its plans for a new Department of Homeland Security, ultimately bestowing him the title of assistant secretary for science and technology, Albright was alarmed to find that the people around him were not as prepared.
“There was almost nobody in the senior leadership at the Department of Homeland Security who really understood the details of what it took to run a cabinet agency,” he told me. When DHS officially began operations on March 1st, 2003, everything was so haphazard that one undersecretary worked out of a former cleaning closet with a shower curtain for a door. There was no human resources professional to help Albright hire people and no bank account for his budget. When he tried to type out an email, an orange bar would pop up, freezing everything for three to four minutes; DHS employees soon took to calling this the “orange screen of death.”
The dysfunction might have been funny, in a Dilbert-meets-Veep way, if the stakes weren’t so high. Albright was overseeing a project called BioWatch, a system intended to detect traces of biological and chemical weapons of mass destruction. Bush described BioWatch in his 2003 State of the Union as “the nation’s first early warning network of sensors,” which would initiate processes to mobilize hospitals, alert the public, and deploy supplies from the national stockpile.
There was only one problem: BioWatch never functioned as intended. The devices were unreliable, causing numerous false positives. “It was really only capable of detecting large-scale attacks,” Albright explained, because of “how big a plume would have to be” for the sensors to pick it up. And the system was prohibitively slow: every 24 hours, someone had to retrieve a filter and then send it to a laboratory for testing, which might then take another 24 hours to discover a pathogen.
“The time required after BioWatch might pick up evidence of a toxin and the time required to get it to somebody who might be able to reach a conclusion there might be a terrorist attack — my God, by that time, a lot of people would have gotten sick or died,” former Senator Joe Lieberman told me.
Albright did his best to make it work. He ramped up filter testing but discovered this overwhelmed the labs. He tried to automate everything. He pushed for new and better devices. But eventually, besieged by illogical requests and turf wars and policy wonks who didn’t know how to implement anything, he got fed up and quit DHS in July 2005.
This same faulty biosurveillance program remains in place in 2022, sputtering along, costing $80 million a year. The Bipartisan Commission on Biodefense has repeatedly called for BioWatch to be terminated or replaced, issuing a report last year deeming it “legacy technology that has long outlived its utility.” Lieberman called the program “an embarrassing failure.”
Albright knows that BioWatch is only one of the many fiascos caused by the systemic disarray at the Department of Homeland Security. “It’s a place where good people go to die,” he said, “because it’s actually a pretty thankless job, and almost nothing you do is going to go right.”
These days, the mess at the Department of Homeland Security is one of the only things that all of Washington can agree on. Disliked by both Democrats and Republicans, DHS has metastasized into the worst version of what we imagine when we think of bureaucracy: rigid, ineffective, wasteful, chaotic, cruel. Since its inception, DHS has been on the Government Accountability Office’s “High Risk List,” which highlights programs vulnerable to “fraud, abuse, and mismanagement.” It consistently has the lowest morale of any federal agency with more than a thousand employees, according to the Federal Employee Viewpoint Survey.
“It’s like an agency no one wanted and everyone is stuck with,” said Juliette Kayyem, assistant secretary for intergovernmental affairs at DHS from 2009–2010.
“Even for someone who is kind of cynical, it was shocking,” said John Roth, the DHS inspector general from 2014–2017. “You do a little scratching, and there was just rot underneath.”
We see the downstream effects of the Kafkaesque ineptitude at DHS every day, even if we don’t recognize the connection between headlines about alleged sexual abuse at migrant detention centers, billions of dollars disappearing into fraudulent disaster aid, and the erasure of text messages likely detailing an attempted coup. DHS functions as a loose confederation of subagencies, meaning that the absurdity of security procedures at airports is attributed to the Transportation Security Administration, not to DHS, and the anemic response to Hurricane Katrina was blamed on the Federal Emergency Management Agency, not its parent organization. Yet the tensions between these satellite operations and the cabinet secretary’s headquarters in Washington, DC, are crucial to understanding DHS.
“IT’S LIKE AN AGENCY NO ONE WANTED AND EVERYONE IS STUCK WITH.”
“I would call it unwieldy,” said Kevin McAleenan, who served as acting secretary of homeland security in 2019 after working at the department since it was founded. McAleenan recalled moments when he saw people at headquarters “trying to direct activities they didn’t understand very well and mission sets they weren’t familiar with and legal frameworks they hadn’t studied, and I thought, ‘This isn’t going to work. We’re not going to overcome the problem of expertise or, in this case, the lack of expertise.’”
Some consider the Department of Homeland Security successful because there has not been another major terrorist attack in the United States since 9/11. And it’s true that only about a hundred people have died on US soil from Islamic terrorism in the past two decades. But domestic terrorism and mass shootings are on the rise, with Americans now justifiably afraid of malls, parades, supermarkets, churches, and elementary schools. Militias plot against democracy. A deadly virus has killed over a million Americans. Foreign governments infiltrate social media and snatch our data. Storms and wildfires grow bigger and more frequent every year. Tens of thousands of migrants linger in refugee camps at the southern border. Those that make it across face what one high-level whistleblower called “a system that involves widespread abuse of human beings.”
All of this is under the purview of DHS.
The Department of Homeland Security was supposed to protect Americans from earthquakes, nukes, pandemics, assassins, smugglers, hackers, and hijackers. These are the folks in charge of securing critical infrastructure, meaning everything from voting machines to sports stadiums to the water supply. DHS checks for explosives at airports and border crossings; manages the immigration process and migrant detention centers; helps rebuild after natural disasters; and coordinates intelligence and threat response with the CIA and FBI, as well as state and local law enforcement.
It’s a truly bonkers amount of responsibility, fueled by $80–$150 billion a year in taxpayer money and encompassing an alphabet soup of around two dozen entities, including FEMA, the TSA, Customs and Border Protection (CBP), Secret Service (USSS), Citizenship and Immigration Services (USCIS), Coast Guard (USCG), Cybersecurity and Infrastructure Security Agency (CISA), and Immigration and Customs Enforcement (ICE). In a nationally televised address announcing his intention to form the department, Bush said DHS would “unite essential agencies that must work more closely together” and increase “focus and effectiveness.” But the 2002 bill creating the Department of Homeland Security may as well have been called Murphy’s law.
“It was a walking nightmare from the very beginning,” said John Magaw, the founding administrator of the TSA and a former director of the US Secret Service. “It just was not gonna work.”
(A spokesperson for DHS was given ample time to comment on this story but missed multiple deadlines to do so.)
How did the Department of Homeland Security become such a disaster? In recent months, I’ve spoken to a few dozen insiders and watchdogs across every era of DHS, reviewed thousands of pages of documents, and read up on the history and political science behind what makes government agencies effective. An investigation like this one might normally hope to answer the question: Whose fault is this? Who can we point to and fire or malign? But what I’ve found is that those lines of inquiry are irrelevant. This is a boondoggle spanning four presidencies, 11 Congresses, seven secretaries, and seven acting secretaries in a department with very high turnover that oversees 212,000 employees and hundreds of thousands of private contractors at any given moment. It’s not just one person’s fault or a handful of bad apples.
There will always be corrupt officials, lazy civil servants, sociopathic politicians, pedophile teachers, and sadistic prison guards. As James Madison wrote in 1788, “If men were angels, no government would be necessary.” The Constitution’s framers were trying to build a system that would keep the worst human tendencies in check. Evil is banal, yes, but our tendency to blame individuals for bad behavior can distract from the institution incentivizing that bad behavior.
So what is it about this institution in particular that allows wrongdoing to flourish? Why does the Department of Homeland Security suck so much?
THE PROBLEM IS PARTISAN POLITICS
Perhaps all of the troubles stem from the fact that President George W. Bush didn’t originally want to create the Department of Homeland Security; he was persuaded into doing so by Democrats, who were themselves mostly grasping for an opportunity to score political points. Almost no one pushed for a new department because they thought it was a good idea. The original sin of DHS may be that it was a political feint, a gestural response meant to appease critics, forever scrambling to generate results to match the rhetoric and thereby justify its existence.
Let me explain. The chaos of 9/11 revealed major vulnerabilities in how the country operated, prompting a torrent of change. Knives and box cutters easily made it past the privatized security paid for by airlines, so Congress established the TSA, federalizing airport screening. Cockpit doors were fortified. Law enforcement, from the FBI to the NYPD, shifted resources to counterterrorism.
“The threat was, in our estimation, still very much there, and we were all wondering where the next shoe was going to drop,” said Admiral James Loy, who ran the TSA from 2002–2003 and then served as deputy secretary of homeland security until 2005. “Would it be another aviation incident? Or would it be at a port? Or would it be on a train?”
In this atmosphere of fear, it became difficult to distinguish necessary improvements from superficial reassurances and power grabs. Every issue suddenly had a national security angle, from prescription drug costs to local infrastructure projects. Much of the 21st century has involved reaping what was sown in the reaction to 9/11. The Patriot Act led to widespread federal surveillance of ordinary Americans. The invasion of Afghanistan and then Iraq brought kleptocratic anarchy to the region, provoking a new generation of terrorists.
DHS is no different.
Nine days after September 11th, and two and a half weeks before the first bombs dropped on Al Qaeda, Bush appointed Pennsylvania Governor Tom Ridge to run a new Office of Homeland Security within the White House. The emergence of “homeland security” as distinct from “national security” signaled both a white-knuckled patriotism and an acknowledgment that the country had been caught wholly off guard by the first attack on the continental United States since the War of 1812. Ridge was told his job was “to button up the country.”
By the beginning of 2002, with the midterm elections on the horizon, the Democrats were looking for a way to position the party against a popular wartime president. Bush’s approval ratings hit a high of 92 percent after the attacks and remained consistently in the 70s and 80s throughout the winter and spring. The Dems had a very slim majority in the Senate. One of the only things that seemed to get traction with the public was poking the Bush administration for being too secretive (e.g., calling for investigations into Vice President Dick Cheney’s energy industry dealings).
IN APRIL 2002, FIVE WHITE HOUSE STAFFERS BEGAN MEETING IN A BUNKER BELOW THE BUILDING TO PLOT OUT A NEW DEPARTMENT
Soon, top Democrats like Senate Majority Leader Tom Daschle were demanding Tom Ridge explain to Congress what exactly the Office of Homeland Security was doing. White House advisors don’t regularly testify before Congress, but department secretaries do. So the Dems began advocating that Ridge run a department. The idea for a “National Homeland Security Agency” had come from a report by the US Commission on National Security/21st Century and was part of a bill introduced in October 2001 by Senators Joe Lieberman (D-Conn) and Arlen Specter (R-Pa). But it was only when the Democratic Party realized that agitating for more transparency from Ridge provided a political edge in early 2002 that they began to push Bush to restructure the federal government. In the spring, the New York Times editorial page repeatedly called for the creation of a Department of Homeland Security, saying Ridge’s lack of testimony was “beyond puzzling, and the Bush administration should unmuzzle him immediately.”
Ridge agreed to brief congressional committees behind closed doors but maintained that a department wasn’t necessary. The White House agreed, arguing that imposing a new bureaucratic superstructure onto existing agencies would not fix the interagency coordination problems that had contributed to 9/11.
Yet as Congress and the public learned more about how the FBI and CIA had refused to share key intelligence with each other or with the Federal Aviation Administration and about how Bush and other leaders had neglected to take precautions in spite of increased warnings about Al Qaeda, more Republicans joined the calls for Ridge to testify. As The Washington Post later reported, “They did not want to cede the homeland security issue to the Democrats.” Six months after 9/11, the Immigration and Naturalization Services (INS) mailed visa approvals to Mohamed Atta, who piloted the first plane into the World Trade Center, as well as another hijacker. Bush started to see the need for a bigger response.
In April 2002, five White House staffers began meeting in a bunker below the building to plot out a new department. Six weeks later, amid congressional hearings about intelligence failures leading up to 9/11, Bush “hastily announced” the intention to bring together 22 disparate entities from across the government to form a Department of Homeland Security, per The New York Times. A few Cabinet secretaries who were losing agencies to the new department didn’t hear details until the day before.
At the end of November 2002, Bush signed the Homeland Security Act, formally standing up a department that hewed closely to the plan his advisors had drafted in the bunker. It was presented as a bipartisan win that would keep the country safe. Former President Bill Clinton remarked that DHS “probably will do some good and won’t do much harm.”
But in the rush to create an impression that problems were being solved, countless other problems emerged. Immigration courts, for example, remained in the Department of Justice, controlled by a separate appropriations process, meaning it became difficult to align the number of courtrooms and judges with the number of migrants detained, leading to crowding at detention centers. Key caveats mentioned in the Commission report suggesting a “National Homeland Security Agency’’ were simply ignored, along with established tenets of good governance.
History has shown that conglomerate agencies combining a hodgepodge of goals rarely do well and that restructurings imposed from outside an agency usually don’t work. A lot comes down to whether an agency has a single, clearly defined mission and the jurisdictional authority to accomplish that mission. This is why several of the people I spoke with said they had concerns about not including the FBI in a department that was supposedly going to take the lead on preventing terrorism.
“That has created some pretty significant dysfunctions,” said Robert Bonner, who was the commissioner of US Customs from 2001–2003 and then of Customs and Border Protection from 2003–2005. “It’s like you put a fair amount of homeland security in the Department of Homeland Security, but the major homeland security of our government is still in the Justice Department.”
According to Kayyem, the former assistant secretary, forming DHS “as a political strategy, not as a policy strategy” meant the department “was flawed at birth,” with a significant gap between meaning and marketing — between what Americans assumed the department was doing and what the department was actually doing: “It was built as political defense, and you’re making up for it the whole time,” she said.
And with time, the distance between the lofty idea of “homeland security” and the daily operations of the department only seemed to grow. After being sworn in as secretary in January 2003, Ridge learned from the State of the Union that DHS would not control an intelligence center he’d been expecting to manage. By the time President Barack Obama sent Navy SEALs to take out 9/11 mastermind Osama bin Laden in 2011, the secretary of homeland security was so out of the loop on counterterrorism that she wasn’t even in the Situation Room as the national security team monitored the raid.
THE PROBLEM IS INFIGHTING
Convincing dozens of incongruous agencies to play nice and work together has always been the central challenge of DHS. But coordinating the activities of government agencies is notoriously difficult. Even getting them to speak to each other can be a challenge.
The morning of 9/11, for example, was rife with communication breakdowns. The military couldn’t get ahold of key officials at the FAA. Police first responders in New York couldn’t speak directly with their fire department counterparts. The Secret Service conveyed instructions to the National Guard that conflicted with orders from the North American Aerospace Defense Command.
So one early priority of the DHS was to establish secure radio channels for emergencies, both within the department and across federal, state, and local entities.
But the subagencies, perennially annoyed about interference and directives from their new overlords, essentially refused to go along with the plan. Ten years after 9/11, an audit of the DHS emergency radio channel found that only one person out of a representative sample of 479 radio users could access and use the department’s designated common channel. The rest were not aware that the channel existed, could not find it, or went looking for an old channel from the Department of Treasury. Only 20 percent of the radios examined in the audit had even programmed the settings necessary to access the channel.
At this point, DHS had spent $430 million on radios for about 123,000 people. At headquarters, committee after committee and office after office had developed policies and issued reports and tried to coordinate the implementation of the common radio channel — to no avail. During the Boston Marathon bombing in 2013, TSA officers were unable to communicate over radio with folks at other DHS agencies.
One of the biggest reasons why DHS has been a failure has been the vehement resistance to integration from entities that had become accustomed to doing things their own way. Agency leaders complain that people from headquarters don’t understand how they operate, undermine their autonomy, and prevent them from getting necessary attention and resources from Congress and the president. At the Coast Guard, the initial shift to DHS was so “traumatic,” according to Vice Admiral Peter Neffenger, a former vice commandant, that there was “a short-lived internal coup attempt.”
“You had at least a few agencies within DHS that never reconciled themselves to the fact they were in DHS in the first place, and that went all the way down to rank and file,” explained Albright, the weapons expert and former assistant secretary.
No one wanted to be swallowed up by a new and inexperienced department. Agencies had different systems of separating the United States into regions, for example, and when Ridge tried to get everyone to adopt a unified geographic system, everyone refused. If somebody asked a DHS employee where they worked, most would say the name of their subagency — not DHS.
FEMA and the Secret Service, in particular, have long wanted to secede from DHS.
“FEMA doesn’t belong in the Department of Homeland Security,” said Brock Long, FEMA administrator from 2017 to 2019.
With such a broad span of objectives and cultures, individual agencies often clashed. The people at US Citizenship and Immigration Services (USCIS), which inherited INS duties such as considering asylum applications, had a fundamentally different approach to immigration than the people at ICE. “You get very committed people on the human rights side,” explained David Seide, at the nonprofit Government Accountability Project, “and those aren’t the same people who are ICE police officers.”
Even in areas where two agencies had similar goals, cooperation was rare.
“Coast Guard and CBP would find themselves in competition in maritime drug interdiction. I’d get a kick out of seeing operational Coast Guard officers saying, ‘That was our drug bust, not CBP’s,’” said Neffenger. “Those guys always want to take the credit at the local level.”
Internal squabbles often came up around the department’s budget. “You have these fiefdoms, each of whom have benefactors in Congress and their own congressional affairs staff,” said Roth, the former inspector general. He recalled times when DHS would submit a budget and then, later, a subagency would approach members of Congress to say, “‘No, we need more money,’ sort of in violation of the rules of the road. DHS is supposed to speak with one voice.”
The “substantial efficiencies” that the original Commission report had predicted around aircraft and vehicle fleets never came to pass. Magaw, who ran the Secret Service and later the TSA, was not surprised. He recalled another early DHS leader telling him, “‘We’re gonna buy cars under one contract,’” and he replied, “You can’t do that,” because each agency’s needs were so specialized.
If anything, when it comes to paying for large-scale machinery, the rivalries between agencies have generated egregious waste rather than economies of scale. Seven agencies initially held onto their own procurement offices. At one point, CBP and the Coast Guard were both trying to upgrade their H-60 helicopters, but CBP “was unwilling to coordinate with the Coast Guard,” according to a 2013 audit, even though working together could have saved the department an estimated $126 million. Instead, CBP spent dozens of millions of dollars modifying helicopters that technically belonged to the Army.
“I don’t know why we fly multiple air forces in the department. I don’t know why we have multiple boat forces,” said Neffenger, who became TSA administrator after decades with the Coast Guard. He called the intradepartmental conflicts over sharing equipment “a silly expensive fight” that “wastes taxpayer money.”
But the agencies within DHS often don’t want to work together. And as long as the department remains divided against itself, it will struggle to be effective.
THE PROBLEM IS BAD LEADERSHIP
Then again, blaming the disorder at DHS on subagencies refusing to work together may be akin to blaming a spoiled adolescent for throwing tantrums: aren’t the parents — or, in this case, DHS leadership — just as responsible for enabling that kind of behavior? Indeed, many people described DHS headquarters as ill-equipped to support the full suite of the department’s operations.
“If you look at how federal departments are structured, they have very large superstructures,” explained McAleenan, the former acting secretary. “The Department of Homeland Security was created with very limited headquarters functions and capacity, and so it’s evolved through various eras with different secretaries trying to gain control and integrate it in a meaningful way.”
At first, the DHS subagencies were grouped into five so-called Directorates, each of which had its own undersecretary. Bonner, the first CBP Commissioner, described the Directorate system as stymieing innovation and efficiency. Asa Hutchinson (now governor of Arkansas), for example, oversaw the Border and Transportation Directorate, which included CBP, ICE, and the TSA. Bonner recalled Hutchinson refusing to allow him to put together a trusted traveler program that would help expedite screening for folks who had previously submitted to a thorough background check because the TSA had not yet developed its own program.
“It wasn’t TSA saying we don’t want this,” Bonner told me. “It was just people in the department who, I’m not being charitable to say, they didn’t know what they were doing.” It would be several more years before Global Entry and TSA PreCheck finally became a reality.
Bonner thought the problem was that the Directorates inserted a “level of bureaucracy between the secretary’s office and at least three of the operational agencies.” So after Ridge left, he and others convinced the next DHS secretary, Michael Chertoff, to reorganize the department.
Some felt that this restructuring, known as the Second Stage Review, only made everything worse.
“It was nuts,” Albright told me. “It made the place pretty much ungovernable.” Without the added layer of undersecretaries, Chertoff now had nearly 30 different people reporting to him. Seide, at the Government Accountability Project, said that the DHS secretary’s job became akin to “drinking out of a fire hose 24/7.”
Long, the former FEMA administrator, told me that FEMA’s guidelines advocate that, during an emergency, the ideal number of direct reports is between three and five people. “You might be able to push that number from five to seven,” he said, but expecting the DHS secretary to oversee 20–30 people is “unrealistic.”
To make matters worse, for FEMA in particular, if there has been a declared emergency or disaster, like a tornado or wildfire, the FEMA administrator is also supposed to report directly to the president. During the two years that Long ran FEMA, he said, there were more than 220 declared disasters, or about one every three days. “What makes it difficult is you serve two bosses,” Long explained. “Quite often, the FEMA administrator can receive a direct phone call from the president of the United States and then spend a long time after that phone call to back brief the secretary and the secretary’s staff on what was discussed, and that’s just not efficient.”
By filtering so many responsibilities through such a small secretary’s office, several people told me, DHS frequently operates with insufficient direction from the top. To make matters worse, leadership positions have often been left vacant, with the officials who remain taking on the responsibilities of two or even three different positions. It may be this paucity of supervision that provides so many opportunities for mix-ups, inconsistencies, and unchecked impropriety.
“It’s hard enough to run an agency where you change leadership every four years, but no leadership? It’s open season. You can do anything you want,” said Roth, the former inspector general. “It didn’t matter whether it was the Obama administration or Trump: I would find things out that the secretary or deputy secretary had no idea about, just completely blindsided. And that’s not how you run an organization.”
The lack of control starts at headquarters and trickles down.This means DHS has trouble keeping track of what’s in its warehouses, from electronic equipment to antiviral medication, as well as what warehouses it even controls. It means that there have been times when a single deportation officer has been assigned to supervise nearly 10,000 non-detained migrants. It means the department lacks consistent, enforceable requirements for subcontractors around price, schedule, and capability, such that in 2015, the Government Accountability Office (GAO) found only two of 22 major programs at DHS were on track — racking up an estimated $9.7 billion more than expected.
A disorganized agency is ripe for exploitation and arbitrary misfortune. “Record keeping was so haphazard,” said Dora Schriro, who served as director of the Office of Detention Policy and Planning at ICE and senior advisor to former DHS Secretary Janet Napolitano. ICE, which has struggled for years without a Senate-confirmed leader, uses five different sets of standards for adults across its migrant detention centers instead of one, Schriro explained, such that how you are treated could depend on which facility you happen to be held at: “When there were surges across the border several years ago, I saw distinctly different practices about who was detained and who was released,” Schriro told me.
When software doesn’t work and paperwork isn’t filed and inventories aren’t kept up to date, it has real-world consequences. Hundreds of thousands of green cards were reported missing over a period of a few years due to internal errors at USCIS, making life harder for legal immigrants and potentially making life easier for anyone with ill intentions.
Over time, managerial chaos becomes the norm, such that when an administration decides to start separating migrant children from their parents, no one is keeping track of who ends up where.
THE PROBLEM IS INSUFFICIENT OVERSIGHT
By 2019, the year after Americans heard audio of crying migrant children held in overcrowded cells, there were around 50,000 migrants detained in nearly 200 facilities across the United States on any given day. Many had arrived legally, had committed no crimes, and were waiting for asylum claims to be processed. The conditions at every facility holding an average of more than 50 people for more than 72 hours at a time, about 100 detention centers in total, have, for many years, been inspected and validated by a private company called The Nakamoto Group.
In a 2018 report, ICE employees and managers described Nakamoto inspections as “useless” and “very, very, very difficult to fail.” Inspections are announced far in advance, giving facilities plenty of time to prepare. Three to five Nakamoto employees might spend three days a year evaluating each detention center — three days to review more than 650 criteria and interview 85 to 100 detainees.
The company has given a passing score to facilities without mentioning moldy food, a lack of access to hot or cold water, insufficient toilet paper and toothpaste, the gross overuse of solitary confinement, and limited or delayed medical care, which led to “medical injuries, including bone deformities and detainee deaths,” according to the DHS Office for Civil Rights and Civil Liberties. Inspectors have been caught repeatedly marking things down that they have not themselves observed or evaluated, including whether telephones were working, whether proof of commercial driver’s licenses existed, and whether detainees knew how to contact an ICE officer.
All of this has been extensively documented, going back several years. Yet Nakamoto remains the sole company contracted to perform inspections for ICE. In the past 15 years, DHS has paid Nakamoto over $60 million, though the company describes itself as a “small, disadvantaged business.” Owner Jenni Nakamoto has been defiant, asserting in congressional testimony that the accusations against her company are all “inaccurate.” She also highlighted that her mother was born in a Japanese internment camp in Arizona, prompting the Asian American group 18 Million Rising to release a statement saying, “Her manipulative use of her family history to excuse her actions is despicable.”
Oversight at DHS has long been a problem. All of the mechanisms that are typically meant to catch misconduct among both political appointees and civil servants at a government agency — program auditors like Nakamoto, congressional committees, internal whistleblowers, and the inspector general’s office — are deeply flawed.
Several sources mentioned that far too much responsibility falls on the relatively small DHS Office of Inspector General (OIG). A 2021 GAO report found that the DHS OIG had “long-standing management and operational weaknesses” that have left it “not well positioned to fulfill its oversight mission.”
The very first DHS inspector general was pushed out after less than two years without ever being confirmed by the Senate. He later wrote that Secretary Ridge once called him to his office to complain about a critical report and “thundered” at him, “‘Are you my inspector general?’”
According to Liz Hempowicz, the director of public policy at the nonprofit Project On Government Oversight, consistently poor leadership at the inspector general’s office created a “culture of impunity” at DHS: “The throughline is dysfunction. You have a former IG who was stealing proprietary information to create his own database to sell back to the government.” (Charles Edwards, who served 2011–2013, was indicted in 2020 and pled guilty this year.) “You have other IGs whitewashing reports to make the agency look better, and then having to recall those later because they’re not factual.” (John V. Kelly, 2017–2019.) “And then you have an IG kind of sitting on incredibly damning information.”
That last one is Joseph Cuffari, who was confirmed in 2019; Cuffari has allegedly suppressed and downplayed evidence of widespread sexual harassment and misconduct at DHS, as well as information about the Secret Service deleting text messages around January 6th, 2021.
Hempowicz’s one exception to the “almost 100 percent failure rate” for DHS inspectors general was John Roth. “I did what I could,” Roth told me. “They just hated us. Certainly, Secret Service and FEMA hated us,” he went on. “We went 10 rounds with FEMA on all sorts of stuff,” including one audit that found $4.39 billion out of $11.59 billion in FEMA grants had been misspent. “It was like Groundhog Day. We’d say the same thing, and nothing would ever change.”
At other departments, reports from an inspector general’s office might get used by the congressional committees overseeing a given agency and its budget. But, as Hempowicz explained, “Almost every committee in Congress has jurisdiction over the Department of Homeland Security, and when almost everyone has jurisdiction, no one has jurisdiction.”
When the Department of Homeland Security was formed, the congressional committees that were already in charge of, say, FEMA or the Border Patrol refused to give up existing jurisdiction and consolidate oversight.
“All the chairmen rose up. Both parties said, ‘No way!’” recalled former Senator Joe Lieberman. As a result, there are nearly a hundred committees and subcommittees with the power to call DHS officials to testify. By comparison, the Department of Defense reports to eight committees and subcommittees.
When I asked if there was a solution, Lieberman scoffed. “The solution is self-discipline by members of Congress in the national interest — in this case, in the interest of homeland security. Unfortunately, I would say, don’t bet on it.”
With so few of the oversight structures at DHS working as they are supposed to, individual employees sometimes feel compelled to step forward and disclose wrongdoing they have witnessed. But this, too, has not worked as well as it has at other federal agencies. Whistleblowers at DHS have consistently faced retaliation, even though whistleblowing is a legally protected act. The department lacks a consistent process or adequate staff to handle claims. Government Accountability Project senior counsel Dana Gold’s client Dawn Wooten, the nurse whose reports of mass hysterectomies at an ICE detention center led to investigations by Congress and the Department of Justice, has been “completely blacklisted” by employers, Gold told me. “Her disclosures have been acted on, validated, and catalyzed all this change, and yet she is sitting there twisting in the wind. I mean, that’s crazy.”
With every form of oversight at DHS defective in some way, malfeasance often goes unpunished. In such a system, even the most well-intentioned cog cannot overcome the rotten incentives of the machine.
THE PROBLEM IS THE CONSTITUTION
Flavia Pennetta was up 5-3 in the second set of her match at the 2015 US Open when she heard a loud buzzing and then a bang. “I’m imagining, ‘Okay, it’s a bomb,’” the tennis player said at the time.
It was actually a drone, piloted by a 26-year-old teacher, that flew into Louis Armstrong Stadium and then crashed into an empty seating section, stopping play and scaring the bejesus out of many of those present. No one was hurt, but Pennetta was right: the drone easily could have been carrying something destructive. And if it had been, as law enforcement at every level has come to learn, it would be almost impossible for stadium security, local cops, or even the FBI to get permission to quickly shoot down the drone in time to prevent an attack.
“It’s such a complex situation,” said Mark Herrera, the director of safety and security at the International Association of Venue Managers. “You gotta go through a lot of red tape to get certain things done.”
In the past decade, unmanned aerial vehicles (UAVs), or drones, have exposed a gaping vulnerability in the central mission of the Department of Homeland Security: specifically, the problem of the Constitution. The United States defers in many ways to private property owners and local and state governments. Part of why DHS has so much trouble being effective is the ongoing tension between the top-down nature of federal security priorities and the bottom-up reality of how this country actually works. The Bill of Rights guarantees civil liberties — like protection against government seizure of private property. But more importantly, the 10th Amendment guarantees any power not explicitly delegated to the feds will be left to the states. That leaves DHS with a lot less authority than it might want, even as it assumes responsibility for factors it cannot control.
The vast majority of places posing the biggest security risks are not managed by the government, including stadiums, water treatment facilities, and power plants. But even if a drone approaches a property patrolled by the public sector, such as a prison or an airport, the sheriff, the warden, the TSA, and the airport police don’t quite have the authority to take action on their own; they may need to reach out to the FAA, which is within the Department of Transportation, or to the military. Yet these tiny flying machines can swoop and careen at 180 miles an hour — far faster than the amount of time it might take to send a request through the proper channels to stop something terrible from happening.
“THEY ARE CRAZY,” SAID ONE HIGH-LEVEL STATE SECURITY OFFICIAL, PREFERRING TO SPEAK ANONYMOUSLY SO AS TO NOT HARM DELICATE RELATIONS WITH DHS.
The issue of jurisdiction is hardly limited to drones. Early on, DHS struggled to develop partnerships at the local level, approaching with what one observer described as a “command and control” attitude that tended to rub people the wrong way. From a strategic standpoint, this makes sense: it is how the military might operate abroad, where pesky issues like civil liberties are less of a problem. Though these relationships have improved over time, many state and local officials still find interacting with DHS to be frustrating.
“They are crazy,” said one high-level state security official, preferring to speak anonymously so as not to harm delicate relations with DHS. “In my experience, there’s a lot of misunderstanding on just how states work. They don’t understand that not all states function the same way” and, therefore, can be “very intransigent.”
Kayyem, the former assistant secretary, served as state homeland security advisor in Massachusetts before working at DHS. She recalled a time when her staff found out, by chance and with six days’ notice, that ICE was planning an enormous raid. No one had consulted with local leaders or schools about what would happen to over a hundred children whose parents were about to disappear.
In some cases, federal officials might not even be aware of exactly who does what on the local level. Suzanne Spaulding, who was the undersecretary in charge of cybersecurity and infrastructure from 2011–2017, told me that in the run-up to the 2016 election, “we did not have relationships with state and local election officials. That would have really helped,” she said. “We thought we were getting information to election folks when we provided it to the governor’s office, and it was only much later that we realized they’re completely separate offices.”
When it comes to identifying the exact businesses and places that are vulnerable to terrorists, DHS has a very broad list: casinos, oil facilities, farms, schools, nuclear reactors, trains, dams, restaurants, banks, factories, and much more. Most are privately owned. But very few companies want to invest in the kind of security, whether physical or cyber, that the feds might consider ideal.
Early on, Ridge tried to require higher levels of security at chemical plants where an attack could affect more than a million people but was shut down by the Bush administration and the industry. Even if a company’s internal security chief manages to convince the CEO to put money toward increased protections, there’s no real way to prove these expenditures are helpful. “It’s very hard to demonstrate a return on investment because you made something not happen,” Spaulding said.
At the end of the day, there is little DHS can do to guarantee total safety. The freedoms enshrined in the Constitution, whether for individuals, states, or businesses, are just incompatible with the authoritarian level of security promised by DHS.
THE PROBLEM IS OUR EXPECTATIONS
DHS was at least nominally created to prevent another 9/11, a mission echoed in the inescapable slogans of the early aughts: “Never Forget” and “Never Again,” often spoken by politicians, police, and firefighters and repeated on billboards, posters, and sweatshirts.
Yet the expectation of an immaculate security apparatus, implemented immediately, proved impossible to fulfill.
Early on, Albright, the former assistant secretary for science and technology, was developing an internal assessment for DHS around the possibility of a biological attack. He wanted to set a threshold of saving 90 percent of the lives that would otherwise be lost but told me he received pushback on the idea that 10 percent would be sacrificed: “Even in a classified document, nobody is willing to articulate what is good enough,” he said. But the hesitation to acknowledge that anyone at all might die could have dire, unintended consequences, he explained: “If I said as a requirement in the event of a bioattack, ‘I’m going to save everybody,’ that is an impossible threshold, and you will go broke trying to achieve it, and you will never achieve it. You’re just setting yourself up for failure, and furthermore, you will make it impossible to make the various trades that you would make across the system to achieve a goal that’s actually more attractive.”
He found the same reluctance within DHS around how much outage might be acceptable when it came to running water, electricity, or crucial transportation networks. In every aspect of the department’s work, the pursuit of security leads to tough choices. But often, Americans don’t want to face the realities of these choices.
One of the best examples of this problem is the TSA.
Even when the country was disoriented with fear after 9/11, no one actually wanted to spend two hours waiting in a line before being allowed to board a flight. This means the TSA has had two choices: speed things up and accept that some dangerous objects might make it onto planes, or piss everyone off by examining every last human and suitcase. The agency has emphasized different priorities at different moments over the past two decades. But in trying to balance calls for comprehensive screening with passengers’ privacy and economic efficiency, the TSA is inevitably lambasted, whether over sluggish lines, invasive and offensive methods, Potemkin procedures, or missed threats.
Simply by taking on the responsibility of preventing bad things from happening in a world where plenty of bad things happen, DHS seems to do nothing right.
THE RESULT IS THAT DHS IS ALMOST ALWAYS DAMNED IF IT DOES AND DAMNED IF IT DOESN’T.
“You can’t say ‘acceptable losses,’” said Kayyem, the former assistant secretary. “It’s binary: there was a bombing, or there wasn’t.” She described how tricky it is to set realistic expectations. Even if training and preparation from DHS manages to lessen the effects of an outburst of violence or a flood, that doesn’t really matter to the public: a disaster that goes relatively well is still a disaster.
The result is that DHS is almost always damned if it does and damned if it doesn’t. The department might get criticized for asserting too much responsibility, as it did earlier this year by announcing and then quickly scuttling a disinformation board, and it might get criticized for abdicating its responsibility, as it did during the early phases of the pandemic. Grants from the department have been pilloried as too generous but also as too stingy.
And in the case of a genuine success, like if a massive terrorist attack is averted, the information is often classified, and the public never hears about it.
So maybe the problem lies not with DHS but with us and our expectations. Maybe we are delusional in thinking any government agency could accomplish so much and so quickly.
Back in 2002, when Bush was still deciding whether to acquiesce to pressure and create the Department of Homeland Security, he called together his Cabinet for some advice. As the administrator of the newly formed TSA, John Magaw attended the meeting at the White House with his then-boss, the secretary of transportation. Bush went around the room, soliciting opinions about what he should do.
When it was Magaw’s turn to speak, he said, “Mr. President, you know, I know that it’s gonna be a real issue for the Secret Service. It’s gonna be a real issue for FEMA. And it’s also a situation where you can’t put these 20-some-odd agencies together and expect it to function very well.”
“How long would it take to get them to function?” Bush asked.
“Forty years,” Magaw replied.
“Yeah,” Magaw said. “In my view, it’s not a good move.”
Two decades have now passed since this conversation — half the amount of time that Magaw predicted it would take for DHS to become an effective agency. Perhaps the biggest issue facing the Department of Homeland Security is that it’s just too young and, therefore, hasn’t yet found its footing.
Magaw was not the only person to suggest this to me, and his estimate does have historical precedent. The end of World War II saw the creation of the Department of Defense, merging all of the branches of the armed forces into a single entity for the first time. It was a tense and difficult consolidation; the first secretary of defense grew so stressed over the job that he eventually died by suicide. For decades, the DoD had a reputation as disorganized, wasteful, and beset by infighting. And then, about 40 years in, a series of scandals prompted a presidential commission, which put together a comprehensive report about what wasn’t working. In 1986, Congress passed the Goldwater-Nichols Act, restructuring the way DOD operated and creating new standards of accountability at every level.
So maybe, just maybe, DHS will start to come into its own around the year 2043. Already, folks like McAleenan and Lieberman insist the department has made significant progress and is far more functional and coherent than it used to be. Then again, it may not make sense to compare DHS with the Department of Defense. DOD has a clear mission, clear jurisdiction over that mission, a clear sense of what a win looks like, and far fewer Americans closely observing its activities on the ground, overseas.
DHS is a muddle of unreasonable goals, a department held responsible for hazards and missions it has limited authority over, with overstretched leadership struggling to manage a diffuse jumble of workers whose mistakes can be both disturbing and highly visible. In order for Magaw’s prediction to come true, the next 20 years are going to need to look radically different from the last.