THE STATUTORY AUTHORITY OF HOMELAND SECURITY
"When's the last time you used duct tape on a duct?" (Larry Wall)

    There are two major pieces of legislation which constitute the statutes that provide homeland security with its authority -- the U.S.A. Patriot Act of 2001 and the Homeland Security Act of 2002.  In addition to these, there are important other presidential directives (PD), homeland security presidential directives (HSPD), executive orders (EO), and public laws (PL).  Antiterrorism Law is discussed elsewhere, so this section deals primarily with settled homeland security law.  The law in this regard has many new developments, and a few places to keep track of it all are the Center for State Homeland Security, Jurist, and OMB Watch.  A chronology of all the presidential directives and executive orders issued by all the Presidents is maintained at the FAS website.  The following is a list of some significant actions in chronological order:  

• Homeland Security Presidential Directive 39: U.S. Policy on Counterterrorism (1995) -- establishes a no-concession policy toward terrorists, and orders FEMA to implement a Federal Response Plan

• Presidential Directive 63: Protecting Critical Infrastructure (1998) -- exercises federal leadership in public/private partnerships aimed at eliminating physical and cyber vulnerabilities; establishes an office of National Coordinator, expands the FBI's National Infrastructure Protection Center, expands Commerce's Critical Infrastructure Assurance Office, and leads to sector-specific Information Sharing and Analysis Centers (ISACs) 

• U.S.A. Patriot Act of 2001 -- enhances roving surveillance authority, streamlines wiretap authorizations, sets up anti-terrorism asset forfeiture procedures, approves detention of suspected terrorists, removes obstacles to investigating terrorism, increases penalties for terrorist crimes, removes any statute of limitations, encourages federal involvement in domestic preparedness exercises, and supports creation of DHS

• Homeland Security Presidential Directive 2: Combating Terrorism Through Immigration Policies (2001) -- sets up aggressive, new immigration policies to locate, detain, prosecute, and deport suspected terrorists

• Homeland Security Act of 2002 -- establishes DHS as a cabinet agency, sets up the five directorates of DHS, transfers responsibilities from other agencies, migrates some agencies to DHS, allows DHS to adjust human resource rules, lays groundwork for intelligence fusion center

• Homeland Security Presidential Directive 3: Creation of Advisory System 2002 -- sets up a system of threat conditions; i.e., low = green, guarded = blue, elevated = yellow, high = orange, and severe = red  

• Homeland Security Presidential Directive 5: Management of Domestic Incidents 2003 -- orders DHS to develop a National Response Plan replacing (harmonizing) FEMA's Federal Response Plan

• H.R.3158: Preparing America to Respond Effectively (PREPARE) Act (2003 & pending) -- amends the Homeland Security Act of 2002 to possibly revert some authority back to state and local officials on the basis of to-be-established task forces (buried in numerous committees)

• S.2599: Information Sharing Improvement Act (2004 & pending) -- expands the definition of a criminal investigation to include any national security investigation, enhances other investigation and prosecution tools (buried in committee)

• S.2679: Tools to Fight Terrorism Act (2004 & pending) -- eases investigation of preparatory actions taken by "lone wolf" terrorists, immunizes officials against liability on good faith, penalizes hoaxes and false information, increases penalties for obstructing justice/providing material support in terrorism cases, expands death penalty for certain terrorist crimes not covered elsewhere (on Senate calendar and likely to pass)

• S.2774: 9/11 Commission Report Implementation Act of 2004 -- reforms the intelligence community by creating a National Intelligence Director who is above the Director of the Central Intelligence Agency, moves toward eliminating ease of obtaining fake IDs, adds more border guards, and takes other measures to better coordinate interagency counterterrorism efforts (passed into law during December 2004 after being stripped of certain immigration and state driver's license provisions)          

    By way of quick observation, the most recent piece of legislation (S.2774) may very well need amendment after awhile, since the new National Intelligence Director may not have sufficient authority over many intelligence agencies -- military agencies, in particular.  Title 10 of the U.S. Code reserves certain intelligence jurisdictions to the Pentagon, as does DoD Directive 5100.20, both of which cover the Defense Intelligence Agency (its Army, Navy, Air Force, and Marine sub-branches), the National Reconnaissance Office (which controls all spy satellites), the National Imagery and Mapping Agency (now called the National Geospatial-Intelligence Agency, which selects the routes for satellites), and, most critically, the National Security Agency (the largest U.S. intelligence agency which monitors all global communications).  It remains to be seen if a new "intelligence czar" will be capable of making all the agencies in the intelligence community more "agile" in assisting with homeland security investigations.          

INTERNET RESOURCES
Advancing the Management of Homeland Security (pdf)
Agencies and NGOs Involved in Disaster Relief
A Master's Thesis on Modeling Homeland Security (pdf)
Beyond a Panic-Driven Approach to Homeland Security
DHS: Another Washington Bureaucracy or Model of 21st Century Government?
Dory's Article on "Civil Security" (pdf)
Final Report of "Dark Winter" exercise at John Hopkins Biodefense Center (pdf)
History of the National Security Council
Homeland Security Act of 2002
Homeland Security DoD Directives
Homeland Security Legislation Signed into Law & Still Pending
Kagan's 2000 Report on Rebuilding America's Defenses (pdf)
Kettl's Article on the States and Homeland Security (pdf)
Nuclear War Survival Skills (free online book)
The Diaspora Website
The Evolution from Civil Defense to Homeland Security
The Legal Basis for Military Operations in Homeland Security (pdf)
The Private Sector Role in Homeland Security (pdf)
The Role of "Home" in Homeland Security
The Role of Law Enforcement in Homeland Security (pdf)
Treverton's Article on Intelligence and Homeland Security (pdf)
U.S.A. Patriot Act of 2001
Viet Dinh's Primer on the Patriot Act (pdf)
White House Homeland Security Accomplishments Page
Wikipedia Article on Three Mile Island Incident
Wikipedia Article on U.S. Dept. of Homeland Security

PRINTED RESOURCES
Abele, R. (2004). A user's guide to the USA patriot act and beyond. Lanham, MD: Univ. Press. of America.
Alexander, D. (2002). Principles of emergency planning and management. NY: Oxford Univ. Press.
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Brinkerhoff, J. (2002). "The posse comitatus act and homeland security." Journal of Homeland Security (Feb, online).
Bullock, J. et.al. (2005). Introduction to homeland security. Boston: Elsevier.
Bush, G.W. (2002). The national strategy for homeland security. Office of the White House. (July 16). Online at http://www.whitehouse.gov/homeland/book/nat_strat_hls.pdf.
Cole, D., Dempsey, J. & Goldberg, C. (2002). Terrorism and the constitution. NY: New Press.
Dobbs, M. (2001). "Homeland security: New challenges for an old responsibility," Journal of Homeland Security (March, online).
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Grabo, C. (2004). Anticipating surprise. Lanham, MD: Univ. Press. of America.
Haddow, G. & Bullock, J. (2003). Introduction to emergency management. Boston: Elsevier.
Hart, G. (2003). "Post-cold war lassitude contributed to the attack on America." Pp. 42-46 in M. Williams (ed.) The terrorist attack on america. San Diego: Greenhaven.
Kagan, D., Schmitt, G. & Donnelly, T. (2000). Rebuilding America's defenses. Washington DC: Project for a New American Century.
Kettl, D. (2004). System under stress. Washington DC: CQ Press.
Killenbeck, M. (Ed.) (2001). The tenth amendment and state sovereignty. Lanham, MD: Roman & Littlefield.
Leone, R. & Anrig, G. (2003). The war on our freedoms. NY: PublicAffairs.
LexisNexis. (2004). Homeland security laws and regulations. Cincinnati: LexisNexis.
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Pious, R. (2006). The war on terrorism and the rule of law. Los Angeles: Roxbury.
Rehnquist, W. (2002). All the laws but one. NY: Vintage.
Safire, W. (2002). "On language: Homeland," New York Times Magazine, January 20, 2002, 12.
Treverton, G. (2003). Reshaping national intelligence for an age of information. NY: Cambridge Univ. Press.
Ward, R., Kiernan, K. & Mabrey, D. (2006). Homeland security. Cincinnati: LexisNexis Anderson.
Waugh, W. (1993). "Coordination or control: Organizational design and the emergency management function." International Journal of Disaster Prevention & Management 2(2): 17-31.
Waugh, W. & Sylves, R. (2004). "Organizing the war on terrorism." Pp. 32-40 in T. Badey (ed.) Annual Editions: Homeland Security 04/05. Guilford, CT: McGraw Hill/Dushkin.
Wise, C. (2002). "Organizing for homeland security." Public Administration Review 62(2): 131-44.

Last updated: July 9, 2007
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