Thursday, July 30, 2020

Opportunity for more Congressional oversight for DHS

Even before DHS deployed its military-styled law enforcement personnel into the streets of Portland, Oregon, more robust congressional oversight of the department was long overdue, reported Just Security. 

In the 18 years since its creation, DHS has ballooned: It operates with a $50 billion budget and has a workforce of more than 240,000 employees. It is also the country’s largest law enforcement agency, with over 60,000 law enforcement officers. And its activities have grown in parallel, so that they are now substantially out of sync with its statutory mandate. For instance, Homeland Security Investigations, a component of Immigration and Customs Enforcement (ICE), claims the authority to investigate literally any federal crime.

Oversight and accountability of this massive department have lagged far behind. The agency’s sheer size and its sprawling, diverse missions have hobbled effective internal oversight. The secretary’s office is too small (and, in the current administration, too politically pliable) to conduct adequate supervision. Internal controls, guidelines, and coordinating mechanisms are often lacking or woefully insufficient.

Oversight by congressional committees has also been difficult for two reasons. First, jurisdiction over the department is spread across more than 100 committees and subcommittees, creating competition, confusion, and gaps in coverage. That’s why consolidating congressional oversight of DHS remains the most important recommendation of the 9/11 Commission that has never been implemented. Second, the political dialogue concerning immigration and border security specifically has become so polarized that bipartisan cooperation on DHS oversight has been severely strained.

The DHS’ trend toward lawlessness is on full display in Portland. Videos captured by bystanders show unidentified federal agents, dressed in camouflage, conducting arrests and detentions that look more like kidnapping than law enforcement. Agents are routinely using tear gas and have fired rubber bullets at members of the press. And they appear to have gone far beyond their remit to protect federal facilities, encroaching on state police powers and the Tenth Amendment to the U.S. Constitution. Even the U.S. Attorney for the District of Oregon, an officer in Trump’s own Department of Justice, referred agents’ conduct for further investigation by the DHS Office of Inspector General.

Given this state of affairs, there is no excuse for Congress to rush through another multi-billion-dollar appropriation for the department. Before any funds are made available, Congress should conduct some of the oversight that’s been missing to date.

Congress should start by holding hearings to demand answers about the conduct of DHS agents in Portland (one such hearing is already scheduled for this Friday, but House leadership is still planning to move forward with DHS appropriations in the interim). But it should not stop there. Congress should insist that the president fulfill his constitutional responsibility to nominate a DHS secretary, a position that has been filled by “acting” secretaries since April 2019. It should require the department to develop, modernize and, to the extent consistent with national security, publish operational guidelines ensuring that the department’s law enforcement activities are conducted with appropriate care for constitutional rights and clear channels of accountability. It should commission a thorough outside review of the legal authorities and activities of Homeland Security Investigations. These actions can then inform, not only any conditions or limitations that Congress might want to place on funding, but additional legislative reforms to tackle the department’s many problems.

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