The Department of Homeland Security: Priorities for Reform

With respect to legislative proposals, Congress should create additional Senate-confirmable leadership positions at DHS. In the DHS Reform Act of 2020,³ a piece of legislation introduced in October, House Homeland Security Committee Chairman Bennie Thompson proposed creating a statutory associate deputy secretary. This recommendation is consistent with recommendations made by the two major outside expert reviews conducted in the past year.⁴ Despite the breadth of the department’s operations and responsibilities, the secretary’s office is slim. Management of the department requires an additional secretary-level leader to assist the secretary in managing the enterprise, which includes over 200,000 employees and a budget of more than $60 billion.

A modified DHS Reform Act will likely be introduced in the 117th Congress. At that time, Congress should consider creating an additional leadership position, a statutory undersecretary for privacy, civil liberties, and transparency. Nearly all recent congressional and outside reviews of DHS activities reveal that oversight and accountability mechanisms, such as inspections, professional responsibility investigations, and compliance matters, are not well-coordinated across the department. One aspect of improving that coordination involves integrating the activities of the Office of Civil Rights and Civil Liberties (CRCL) and the Privacy Office, as well as elevating the voice and role of CRCL, which has not had the visibility that a Senate-confirmed leader provides. Transparency about policies and operations related to privacy and civil liberties is an important component of building confidence in the department. Protection of civil liberties and privacy should be an area where there is integrated oversight, particularly in light of the vast amount of data DHS obtains during the course of its authorized activities.⁵ A Senate-confirmed undersecretary should lead these activities to ensure that developing transparency initiatives across the department is given sufficient management authority and policy prioritization.

Border Security & Law Enforcement Reforms

DHS border security and law enforcement activities should correspond to components’ authorized missions and refreshed departmental priorities driven by legitimate security and safety threats and needs. One method of improving oversight of the department’s functions in these areas is to reform border security policies and guidelines to focus on the purposes for which DHS law enforcement agents can be deployed. Not only were the Trump administration’s border and security policies⁶ openly hostile to lawful immigration and migrants, they were in some respects ineffective—by the end of the Trump administration, southern border crossings had more than doubled from where they were at the beginning of the administration.⁷ The hasty development and implementation of border security and immigration restrictive policies—such as the family separation policy and the so-called Muslim ban, which were later subject to review by the courts, revision by the Trump administration, and elimination by the Biden administration⁸—likely created a ricochet effect. The Trump administration policies caused a dip in attempted entry at the beginning of the administration that was then followed by a growth in attempted entry and apprehensions later in the administration as the original restrictive policies were modified. This volatility in policy direction likely contributed to waves of attempted entry and accompanying apprehensions.

The Trump administration’s politicization of border security as part of its anti-immigrant agenda highlights the need for greater oversight and accountability of the U.S. Border Patrol, in particular. Since the early 1990s, the Border Patrol has grown substantially in size and budget, but without corresponding maturity in its internal departmental oversight and transparency.⁹ In 1992, the Border Patrol consisted of just over 4,000 agents and a budget of $326 million; by 2019, the size of the Border Patrol included almost 20,000 agents and a budget of approximately $4.5 billion—a 400 percent increase in agent personnel and a 1,280 percent increase in budget.¹⁰ The size and budget of the Border Patrol has grown substantially. The oversight of the component’s activities must keep pace.

The lack of internal, institutional controls over border security component activities was apparent during the summer 2020 deployment of Border Control Tactical Unit (BORTAC) personnel to Portland, Oregon. During the summer of 2020, the Acting DHS Secretary deployed Customs and Border Protection (CBP) personnel, including BORTAC operators,¹¹ to the interior of the country to bolster federal law enforcement activities in response to protests and accompanying unrest. The DHS personnel surge in Portland was intended to supplement the activities of the Federal Protective Service, a component of DHS, which was protecting the federal courthouse, a target of graffiti and other attempts to breach its security. This deployment to Portland in July 2020 was an inappropriate use of these highly trained tactical officers. It should be the policy of the U.S. government that CBP resources are used for border security, not internal security unrelated to the border. Accordingly, President Biden should issue a directive to Secretary Mayorkas limiting, as a policy matter, the scope of activities that border security personnel may engage in. The new policy should make clear that it does not distinguish between locations within or outside of a 100-mile zone that border security activities are currently authorized to take place within. Put simply, border security personnel should be used for border security.

Having convened a bipartisan virtual roundtable discussion of homeland security experts in the fall of 2020 to consider this issue, the authors assess that there is consensus that the deployment of BORTAC to Portland to assist with protest-related security—even if aspects of it turned violent or destructive—was an inappropriate use of that force. While national and homeland security professionals and lawyers are often reticent to “tie the hands” of a principal from having all the resources available to him or her to address an unknown threat, in this particular case, a policy limitation on the use of Border Patrol resources is warranted for the following reasons: First, if one accepts the security challenges on the border as the Trump administration presented them, CBP resources should have been fully allotted to border security to address the challenges there. Second, if there were a true national emergency, the president would still have emergency authorities at his disposal that would allow him to use CBP personnel, if essential to the threat response. Third, even in an emergency, whether discrete or more comprehensive, Border Patrol and BORTAC personnel are not adequately trained or suited to conduct activities inside the country that are not related to border security or emergencies that may take place in a detention facility. Although originally conceived as a component capable of responding to a border facility riot situation, BORTAC has evolved into a unit with international deployment capabilities and training that bills itself as mimicking U.S. Special Forces.¹² For example, BORTAC personnel were deployed to train Iraqi border enforcement personnel. Fourth, the deployment of BORTAC to Portland in the summer of 2020 was so out of scope that it contributed to intense criticism and loss of confidence in the department’s activities overall, including increased calls for the entire department to be dismantled.

To protect against future misuse of BORTAC or other law enforcement components of DHS, and consistent with recommendations in the May 2020 report published by CNAS, Congress should direct the creation of operational guidelines and transparency around those guidelines. Operational guidelines (such as the Attorney General’s Guidelines for FBI Domestic Operations) provide baseline constitutional requirements and operational rules. Given the significant law enforcement capacity of DHS, it should have department-wide guidelines, which are implemented through additional agency-specific guidelines and rules. These guidelines and rules should be made publicly available, consistent with the need to protect legitimate classified information and sensitive investigative techniques. However, the presumption should tend toward public disclosure.

A challenge that may emerge in the Biden administration’s implementation of needed DHS reforms is resistance from a portion of the law enforcement workforce that both individually and collectively aligned substantively and politically with the Trump administration’s border security and immigration policies and rhetoric.¹³ Both the National Border Patrol Council and National ICE Council endorsed the Trump campaigns in 2016 and 2020, as did other national law enforcement unions, such as the Fraternal Order of Police. The Biden administration will need to forge ahead with reforms, while also making an effort to open a productive dialogue with relevant unions and workforce membership organizations. More broadly, substantial attention will need to be paid to training and developing the professionalism of the DHS law enforcement workforce. From reports of a Facebook group that posted derogatory content, to a Secret Service agent posting on Facebook in support of conspiracy theories and in opposition to the certification of the 2020 election,¹⁴ the years of politicization from the top created an environment where some members of the workforce failed to maintain the apolitical public presence that is required of civil service professionals.

Consistent with earlier recommendations, Congress should commission a 180-day external review of Homeland Security Investigations’ (HSI) legal authorities and investigative activities. This review would focus on overlap with existing investigative activities of the Department of Justice (DOJ) and recommendations for streamlining government operations concerning transnational criminal investigations.

Detention Reforms

Reforming DHS to improve oversight and accountability across border security, immigration enforcement, and law enforcement functions should also include addressing detention practices. Abuses of power and poor treatment of migrants by U.S. Immigration and Customs Enforcement (ICE) and CBP officers have eroded public trust in these agencies.¹⁵ DHS detention is led and executed mainly through ICE and CBP’s Border Patrol. Both agencies are charged with enforcing U.S. immigration laws and apprehending those violating U.S. law. Some of their responsibilities include preventing illegal border crossings, detaining unauthorized migrants, and deporting undocumented people. While ICE and CBP are two separate agencies within DHS and have distinct roles and responsibilities, their work, particularly regarding detention, often interacts and overlaps. Border Patrol concentrates on immigration enforcement at the border, while ICE conducts enforcement activities in the interior of the country. When people are detained for crossing the border illegally, they are initially placed in CBP custody and later transferred to ICE.¹⁶ Border Patrol facilities reflect this order of operations; described as “bare-bones cells,” CBP detention centers are meant to hold a person for 72 hours or less, while ICE facilities are designed for longer-term detention.¹⁷

Secretary Mayorkas should direct CRCL; the Office of the General Counsel; and the Office of Strategy, Policy, and Plans to conduct a joint, comprehensive review of guidelines and operational procedures regarding detention. The review should identify policies and procedures that need to be updated and modified. According to the end-of-year statistics for fiscal year (FY) 2019, the average length of detention was 26.6 days in CBP facilities and 54.5 days in ICE facilities.¹⁸ On an average day in 2019, CBP and ICE had over 50,000 people detained in their facilities; 73 percent of people in ICE custody during FY19 were arrested by CBP.¹⁹ This level of strain on the agencies and government personnel creates an environment ripe for abuse.

Over the past year, the global COVID-19 pandemic has brought unique challenges to DHS detention centers. In spring 2020, responding to a letter from Democratic senators, the DHS inspector general agreed to evaluate how ICE was attempting to “prevent and mitigate the spread of COVID-19 in its facilities.”²⁰ The IG investigation is still underway as of the drafting of this publication, but the report by the majority staff on the House Committee on Homeland Security found that COVID-19 precautions in ICE facilities were inadequate.²¹ Furthermore, a group of researchers found that between April and August 2020, on average, COVID-19 infections were 13 times higher for those in ICE detention than in the general U.S. population.²² Meanwhile, during a similar time period, the case rate in prisons, a comparable environment, were 5.5 times higher than the general population—less than half the rate of those in ICE detention.²³ The lack of appropriate precautionary and prevention measures has allowed COVID-19 to spread in immigration detention centers and has led to several migrant deaths.²⁴

Beyond immediate challenges posed by COVID-19, the new administration must address poor conditions at detention facilities. Although ICE has set standards that its detention facilities must meet, deficiencies or even failed inspections are common. Moreover, even when deficiencies are noted, they are often not remediated.²⁵ Contractors hired by ICE’s Custody Management, the division responsible for overseeing facility compliance, discovered 1,384 deficiencies in its inspections of 115 detention facilities for adults being detained for over 72 hours between FY17–19.²⁶ While ICE retains data from these inspections, the Government Accountability Office found that ICE does not analyze the results to identify trends that need to be addressed, and it stores the data in a largely incomprehensible manner.²⁷

Within one year, the Biden administration should mandate ICE and Border Patrol trainings on legal and constitutional requirements for detention. These requirements should include treating migrants humanely and with dignity and respect. The training should address the culture within ICE and Border Patrol²⁸ by making it clear that current abuses and facility deficiencies are unacceptable, and that violators will face appropriate disciplinary actions. To verify that officials are upholding detention standards, independent facility inspections should be mandated and performed without prior notice. Currently, facilities are given ample advance notice of an inspection, allowing officials time to adjust normal operations in order to mask the reality of conditions and appear in better compliance with the standards. The Consolidated Appropriations Act, 2020 established the position of ombudsman for immigration detention to provide independent oversight of DHS detention.²⁹ The new Office of the Immigration Detention Ombudsman will perform both announced and unannounced inspections of detention centers, but investigations will largely be in response to suspected violations, rather than conducted regularly to ensure continual compliance.³⁰

There should also be mechanisms put in place to force facilities to take appropriate steps to remedy deficiencies found during inspections. For an added layer of accountability, these mechanisms should be available to both DHS and congressional leaders. Steps to address deficiencies should include maintaining the inspection report data and results in an easily understood format and requiring ICE and Border Patrol to analyze the data to identify trends and the actions that must be taken to resolve them. This data should also be readily available for future inspectors to access in order to assess and evaluate progress made by each facility. Furthermore, if facilities consistently fail to improve or comply with set standards, they should be put on probation. If the detention center still does not improve, the secretary of Homeland Security should consider terminating its operating license, consistent with law and applicable agreements.

There are also actions Congress can take independently to help restore trust in ICE and Border Patrol. Congress can wield its power of the purse to exercise oversight of the department.³¹ For instance, Congress could withhold funding until it receives the results from inspections, or it could decrease funding for detention facilities that consistently fail to pass inspections or improve deficiencies. As calls for decreased reliance on private detention facilities increase,³² the department and Congress will need to consider alternatives to detention, such as electronic monitoring when the individual involved poses no public safety or other threat.

The strain on detention capabilities was exacerbated by the Trump administration’s family separation policy. Launched as a pilot program in 2017 and expanded in 2018, the family separation policy, part of the zero-tolerance—or 100 percent prosecution policy—was the intentional, systematic separation of children from family members as a result of a new DOJ policy to fully prosecute all illegal entry cases under criminal law for the purpose of deterring migration.³³ The policy resulted in at least 5,500 children being separated from their parents or guardian, some of whom were separated at legal ports of entry.³⁴ Neither child nor parent were informed of where the other was taken, and reports soon emerged that children were being held in substandard conditions and not allowed proper hygiene and sanitation.³⁵ After intense public outcry, the administration reversed course and publicly announced it was ending family separation as a policy.³⁶ In July 2018, a court ordered the administration to reunite some separated families, but inadequate recordkeeping resulted in the government being unable to locate 362 children, as well as the parents of 545 children as of October 2020.³⁷ The deliberately punitive nature of the family separation policy as a mechanism to deter immigration, as the Trump administration implemented it, counsels against its legality under both domestic and international law.³⁸

Building off the acting attorney general’s rescinding of the zero-tolerance memo,³⁹ President Biden created a family reunification task force via executive order on February 2, 2021, led by the secretary of Homeland Security, or his designee, and including representation from the Department of Health and Human Services, secretary of State, the attorney general, and other agencies as appropriate.⁴⁰ The task force is charged with identifying and then “[t]o the greatest extent possible, facilitating and enabling the reunification of each of the identified children with their families.”⁴¹ This sustained, presidentially-directed task force is critical to making substantial progress on resolving each instance where a child was separated from a parent or family member during border processing and immigration enforcement under the Trump administration.

Mission & Organizational Reforms

While there is much that the executive branch can do in the short-term, for the long-term viability of the department, it is critical that Congress also promptly moves to legislate reforms to the department. Based on private roundtable discussions of former DHS officials and other experts that CNAS hosted in 2019 and 2020, it is apparent that despite efforts by prior secretaries to implement initiatives to improve functions of the department, those reforms were not sufficiently institutionalized to remain effective during transitions to future secretaries, whether of the same or different political administrations. Accordingly, in order to effectuate the types of reforms needed in the department, certain changes should be mandated by law.

Congress should direct the secretary to create an oversight and compliance structure, including an interagency working group, to create guidelines, develop training, and implement accountability mechanisms across the department, and it should require the secretary to report back to Congress within 180 days of enactment of the provision. The department needs a plan for how to integrate oversight and compliance activities across the various offices of professional responsibility, inspection, and disciplinary mechanisms that exist within the sub-agencies. The new secretary should direct the Office of Strategy, Policy, and Plans to lead the development of a structure that coordinates oversight and accountability across the department.

Congress also should work with the secretary to pass an annual homeland security authorization act. Although Section 102 of the Homeland Security Act of 2002 provides the secretary with “direction, authority and control” over the entire department, without an authorization act, the department’s budget does not necessarily reflect the priorities of the secretary or administration.⁴²

Providing the secretary with greater authority to manage the budget across the DHS enterprise will require more effective coordination and deconfliction within Congress itself; currently, the jurisdictions among congressional committees allow for individual components to sidestep the secretary and appeal directly to a component’s oversight committee, which handles its appropriations. A new memorandum of understanding amongst relevant congressional committees is one step forward in ensuring that in the House of Representatives, the Committee on Homeland Security will be consulted on legislation involving DHS components.⁴³

As part of these reforms, Congress should update the statutory mission of the department to enable its operations to adjust to modern and emerging threats. The department’s statutory mission in section 101(b) of the Homeland Security Act⁴⁴ is both underinclusive of the department’s day-to-day activities, and out of date with respect to current and emerging threats and public safety priorities. The overwhelming focus on counterterrorism neither represents the full scope of DHS activities, nor does it provide flexibility for the department to adapt effectively to evolving threats and activities that match the safety and security needs of the country. Policymakers may consider two paths in determining how to update the department’s statutory mission. One path would consist of a complete reimagining of the department’s mission. While the emergence of threats in the past ten years, such as nation-state malign cyber activity, global pandemics, and natural disasters, provide a strong argument for this approach, it likely would be difficult to obtain congressional consensus, given the continuing bipartisan support for DHS’s current mission. Therefore, the second path, a modest update to section 101(b), is likely more politically achievable. Proposed text to prompt debate about updating the statutory mission is available in the May 2020 report.⁴⁵

Conclusion

With the election of a new administration that is expected to be open to recalibrating DHS priorities in a manner that reflects the modern threat environment and has made a commitment to protecting civil liberties and human rights, there is a real opportunity to create a more efficient, accountable DHS for the future. Reforms that will meaningfully impact the manner in which the department conducts its work will have the most success of creating lasting change if they include complementary legislative and executive branch changes.

Acknowledgments

This briefing paper is part of an ongoing CNAS project focused on Department of Homeland Security (DHS) oversight and accountability. The authors are grateful for the insights obtained from a bipartisan group of former DHS officials and other experts who participated in a virtual roundtable discussion convened in October 2020. The authors also thank Christian Beckner, Juliette Kayyem, Chappell Lawson, and Katrina Mulligan for their helpful comments on earlier drafts of this paper, and Maura McCarthy and Emma Swislow for editing. The content of the paper and its recommendations should be attributed to the authors alone, as should any errors. This project and briefing paper are made possible by the generous support of the Democracy Fund.

About the Authors

Carrie F. Cordero is the Robert M. Gates Senior Fellow and General Counsel at CNAS. Her research and writing interests focus on the intersection of law and national security, democracy and rule of law, intelligence community oversight, transparency, surveillance, cybersecurity, and related national and homeland security law and policy issues. She is also an adjunct professor of law at Georgetown Law and a CNN legal and national security analyst. Ms. Cordero spent the first part of her career in public service, including as Counsel to the Assistant Attorney General for National Security; Senior Associate General Counsel at the Office of the Director of National Intelligence; and Attorney Advisor at the U.S. Department of Justice, during which time she handled critical counterterrorism and counterintelligence investigations and appeared frequently before the Foreign Intelligence Surveillance Court. At the U.S. Department of Justice and the Office of the Director of National Intelligence, she worked extensively on developing policies, procedures, and processes related to oversight, compliance, and protection of privacy and civil liberties in the context of government national security investigations and intelligence activities. She also served as a Special Assistant United States Attorney. After leaving government service, Ms. Cordero was the Director of National Security Studies at Georgetown Law, and was in private practice, handling matters related to surveillance, law enforcement response, security, and privacy. She has testified before the U.S. Congress on surveillance reform and foreign influence on democratic institutions. Ms. Cordero earned her JD, cum laude, from Washington College of Law, American University, and her BA, magna cum laude, from Barnard College, Columbia University. @carriecordero

Katie Galgano is a research assistant with the executive team at CNAS. Her research interests include democracy, governance, and the rule of law. Prior to joining CNAS, Katie interned with the Twenty First Century Group. She also interned with the U.S. Department of State in the Office of Global Women’s Issues and in the Bureau of International Organization Affairs. Katie graduated summa cum laude and Phi Beta Kappa from Baylor University with a BA in international studies. @GalganoKatie

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