Governing Security

The Hidden Origins of American Security Agencies

Mariano-Florentino Cuéllar

• Publisher: Stanford Law Books
• Year: 2013
• ISBN:
  9780804784344
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho administrativo

Governing Security investigates the surprising history of two major federal agencies that touch the lives of Americans every day: the Roosevelt-era Federal Security Agency––which eventually became today's Department of Health and Human Services––and the more recently created Department of Homeland Security. By describing the legal, political, and institutional history of both organizations, Mariano-Florentino Cuéllar offers a compelling account of crucial developments affecting the basic architecture of our nation. He shows how Americans end up choosing security goals not through an elaborate technical process, but in lively and overlapping settings involving conflict over statutory programs, agency autonomy, presidential power, and priorities for domestic and international risk regulation. Ultimately, as Cuéllar shows, ongoing fights about the scope of national security reshape the very structure of government and the intricate process through which statutes and regulations are implemented, particularly during––or in anticipation of––a national crisis.

CHAPTER 1

The Twin Problems of Governing Security

A gray dawn began to break over New Orleans on Monday, August 29, 2005, as Hurricane Katrina ripped into the Louisiana Coast. It was 6:10 a.m.¹ At that moment, as thousands of people stuck in the Crescent City were still scrambling to find shelter from the storm, the winds were powerful enough to make even the waters of the mighty Mississippi River reverse course to flow away from the ocean.² Less than two hours later, a barge broke loose from its moorings, smashing into New Orleans’s Industrial Canal. Before long, millions of gallons of water were spilling onto the residential streets of the Lower Ninth Ward and St. Bernard Parish. Upon learning of the breach, the National Weather Service predicted flash floods of up to eight feet of water. The water did not reach the Superdome, where ten thousand refugees had gathered. But the hurricane did. Shortly after the flash flood warning, Katrina tore two holes in the roof of the arena. Elsewhere in the city, water from multiple canal breaches mixed with fuel and industrial runoff. By early afternoon, the breaches were well on their way to placing much of New Orleans under a muddy soup of polluted water, and no fewer than eight Gulf Coast refineries had shut down.³

Severe though these consequences were, they did not come as a complete surprise to some public officials. The preceding Friday, three days before Hurricane Katrina struck, Governor Kathleen Blanco had declared a state of emergency in Louisiana.⁴ She authorized National Guard commanders to call up to 2,000 reservists to active duty.⁵ Governor Blanco ordered an additional 2,000 Guardsmen to active duty the next day.⁶ On Sunday, August 28, the state adjutant general, Major General Bennett C. Landreneau, established five task forces to conduct aviation search-and-rescue missions, to deliver food, water, and other supplies, and to help the Corps of Engineers repair storm levees.⁷ National Guardsmen also helped implement contraflow—the use of all lanes of the highway system for outbound traffic only—by directing traffic and erecting barriers.⁸ Not to be outdone, New Orleans mayor Ray Nagin followed suit on Sunday, declaring his own state of emergency and directing legal counsel to explore whether the mayor could legally force recalcitrant individuals to leave town without facing liability.⁹ While state and local officials across much of Louisiana were scrambling to determine how best to protect their citizens and the delicate infrastructure of a region that partly sat below sea level, other Gulf states such as Mississippi also declared states of emergency and began efforts to protect the security of their residents.¹⁰

On Saturday morning, however, President George W. Bush was, ironically, focused on a different sort of security issue altogether. In his weekly radio address, the president covered the challenges faced by U.S. foreign policy with respect to the Middle East peace process and the Gaza Strip.¹¹ Although the president had also declared that a “state of emergency” existed in Louisiana and ordered federal agencies to assist state and local authorities, several reports indicate that two key officials in charge of managing that effort—Homeland Security secretary Michael Chertoff and Federal Emergency Management Agency director Michael Brown—did not mobilize the National Guard at that time.¹² Indeed, on Tuesday, several hours after Katrina hit the Gulf Coast, President Bush proceeded with a previously scheduled speech in San Diego discussing the history of America’s involvement in World War II and calling on the nation to continue supporting the deployment of American soldiers to Iraq.¹³ Even as the president addressed events thousands of miles beyond American shores, a different cluster of security issues was emerging along the Gulf of Mexico. There the looming disaster posed risks to the American energy infrastructure, and to hundreds of thousands of people, in the path of the vast storm. The people and infrastructure of the Gulf Coast region—as richly demonstrated by the infamous British Petroleum oil spill five years later—were all the more exposed because they found themselves in a fragile, low-lying region of bayous, refineries, and oil rigs crisscrossed by canals and by the waters of the Mississippi.

By Tuesday, August 31, fully 80 percent of New Orleans was underwater. Tens of thousands of its residents had themselves flooded into downtown seeking shelter.¹⁴ For five days, about 20,000 people waited inside the Ernest N. Morial Convention Center in New Orleans, turning it into a squalid urban refugee camp.¹⁵ Conditions inside the convention center rapidly deteriorated, reflecting inadequate security policies and insufficient numbers of security personnel.¹⁶ Observers in the region at the time described problems involving young men from “rival housing projects” who brought guns with them and put them to people’s heads.¹⁷ Later, “a gang broke into the locked alcohol storage areas . . . [a]nd before long, there were scenes of gangsters drunk, groping after young girls.”¹⁸ Youths hot-wired electric utility carts and forklifts, driving them recklessly through crowds of people.¹⁹ Just over a mile away, nearly the same number of people had taken shelter under the torn roof of the Superdome, where refugees faced hunger, squalor, and racial tensions.²⁰

Three miles from the Superdome in the direction of Lake Pontchartrain, floodwaters reached the edge of Tulane University’s historic campus, stopping just short of the university’s main library on Freret Street.²¹ Among the government documents in the university’s library system was the Homeland Security Act (HSA), the 187-page statute that provided the blueprint for the creation of a new cabinet-level agency focused on the country’s interrelated security challenges. Among other things, the law conferred upon the superagency the responsibility for preventing and mitigating disasters such as the one that was at that moment bringing New Orleans to its knees. And while the HSA unquestionably defined the new agency’s mission to encompass disasters like the one that was on the verge of flooding Tulane’s library, it also—indeed, perhaps inevitably—left a considerable amount of discretion to the executive branch in defining precisely how security priorities should be understood and implemented. In effect, the problems posed by both the floodwaters at the edge of Freret Street and the complicated statute housed in Tulane’s library implicated the role of federal bureaus such as FEMA and the Coast Guard, and the priorities of the new cabinet-level Department of Homeland Security (DHS), which was imbued with the legal responsibility for helping Americans manage threats to their security at home.

Actually, the performance of what was then a recently forged cabinet agency poses a stark organizational irony. Despite the fact that DHS was created precisely to improve the nation’s capacity to manage disasters, reasonable observers would find it all but impossible to describe the early response to Katrina as a success.²² A year after Hurricane Katrina devastated the Gulf region, former FEMA director Michael Brown claimed that there was no federal pre-disaster planning because President Bush and Department of Homeland Security secretary Michael Chertoff did not release funds to allow the federal agencies to coordinate a response.²³ Yet Brown himself waited five hours after Katrina struck Louisiana’s shoreline before asking his superior, Secretary Chertoff, to authorize sending about 1,000 employees of DHS to the region.²⁴ The FEMA director also gave them two days to arrive, a decision suggesting that FEMA hardly grasped the full scale of the disaster in New Orleans.²⁵ Reacting in part to uncertainty regarding the federal role,²⁶ Brown discouraged state, local, and private efforts to help in the critical hours after the hurricane struck.²⁷ While Secretary Chertoff was the pivotal national official in charge of emergency response (and of FEMA itself), he failed to activate the national response plan until late Tuesday.²⁸ Over time, the Coast Guard—a bureau that had been transferred to DHS—continued rescuing people from the rooftops of city districts swelling with toxic floodwaters and earned plaudits from many observers. But despite this effort and the work of thousands of DHS employees, the roles of FEMA and DHS itself provoked continued concern among lawmakers, state and local officials, and the public as the tense days of the initial recovery gave way to the longer-term challenges of reconstruction. These and countless other examples of staggering failure in the federal response contributed to the scale of a tragedy that cost the nation thousands of lives and more than $150 billion.²⁹

The survivors who experienced those costs most directly witnessed the destruction of one of the country’s most iconic urban communities. Even for Americans who have never set foot on the Gulf Coast, Katrina’s consequences will undoubtedly appear to be unique in the nation’s history. The human toll and the economic costs reinforce this conclusion, along with the particular set of individuals and circumstances involved. In the days that followed the devastation wrought by the storm itself, Katrina cast a long shadow over the reputations of certain officials and even entire agencies. That shadow also raised for many Americans—including those who weathered the days after the storm at the Morial Convention Center and the Superdome—the question of whether it was all but impossible to expect that federal officials would prioritize the security of thousands of relatively poor residents hard-pressed to leave the Crescent City.

But the detailed analyses of the Katrina response that emerged over the following year tell a more complicated story. In that narrative, ineluctable and related questions arise about the organization of the executive branch and the scope of the executive branch’s responsibility for governing the security of the nation. In that story, organizational problems and trade-offs involving security priorities loom large in a drama also implicating the personalities of those involved in running FEMA, the difficulties overcome by the Coast Guard, and the physical and metaphorical breakdown of entire cities. Boxes and lines on a sterile organizational chart are unlikely to explain all the activities of Coast Guard commanders, disaster response experts, or military commanders. Still, the enormous potential of organizational structure to shape the world is reflected in the fact that it is largely the product of laws allocating jurisdiction across agencies. Indeed, within organizations, formal structure can itself become a form of law, binding groups to each other in a specific way. If it is true that few legal arrangements (whether concerning organizational structure, criminal liability, or anything else) are entirely self-enforcing, it is also true that jurisdictional rules, reporting relationships, and response plans can create expectations and guide the behavior of many thousands of public officials.

In part because of this, when explaining what happened during the Katrina response, a host of observers emphasized the consequences of a complicated and recently imposed organizational structure, coupled with choices that downplayed the relative importance of national disasters in the mission of DHS and FEMA. According to some observers, the reorganization of FEMA under DHS took away its “status as an independent, cabinet-level agency. [I]t became a small part of a large department with much broader objectives.”³⁰ After September 11, 2001, FEMA began transferring its focus away from natural disasters and toward the development of antiterrorism capabilities, a trend that accelerated as DHS was being created.³¹ FEMA director Brown and DHS secretary Chertoff both stated publicly that they had not been entirely aware of the conditions in New Orleans, even though the media had provided graphic and nearly continuous coverage for days.³² Subsequent reports indicate that local, state, and federal government officials were unclear about what role to play, and this confusion “exacerbated the pain, suffering, and frustration of disaster victims.”³³ Under the National Response Plan, a Principal Federal Official (PFO) is a person “designated by the Secretary of Homeland Security to facilitate federal support to the established Incident Command System (ICS) Unified Command structure and to coordinate overall federal incident management.”³⁴ In fact, several failures in the appointment of the PFO took place before the Hurricane Katrina disaster. DHS secretary Chertoff should have appointed a PFO on Saturday, two days before the hurricane reached land, but instead he waited until Tuesday, one day after the storm had reached land. Chertoff’s testimony before the House of Representatives indicated that he was confused about the role of a PFO and had appointed Brown without understanding the scope of a PFO’s duties.³⁵ The uncertainty in roles and responsibilities resulted in the absence of a unified command structure, diluting the capacity of federal officials to leverage available resources.³⁶

Running through the story of the Katrina response, then, is a theme that may hold still-larger implications for the country. It concerns how the nation fills the gap between the general imperative reflected in the Homeland Security Act of providing security to the nation and the pressures that arise when a threat like Katrina confronts citizens, civil servants, lawmakers, and presidents. That gap forces us to consider how the nation defines its security priorities, and at the same time, how public officials work and even compete to secure control of the complex organizations that stand between citizens and the threats they face. If we use the existence of this gap to consider the larger social, legal, and political dramas implicated in the Katrina episode, we can readily discern two sets of questions that should spark interest among scholars, citizens, and policymakers. First, in a world of complex risks, competing lawmakers and organized interests, and differing ideologies, how do agencies acquire their particular structure within the larger context of law and politics? Why, for example, is FEMA within DHS, and what does that mean? Indeed, why is there a FEMA at all rather than (for example) two or three separate agencies disaggregating natural disaster recovery, civil defense, and flood prevention responsibilities? A second question has perhaps even more far-reaching implications: How do agencies involved in security define that concept for purposes of pursuing their priorities and even defining the kind of risks that the state will manage for its citizens?

This book is about how profoundly our lives have been shaped by these questions. It is also about why these questions turn out to be so thoroughly entangled. The national debates and legislative choices that forged DHS constitute a vivid example of how an advanced industrialized country such as the United States decides how to organize and define its security. In the chapters to come, we will learn how this process is driven not only by differing ideas about the value of some organizational forms over others or distinct views about where natural disaster risks rank relative to threats of terrorist attacks; it is also driven by pluralist political realities that set the stage for struggles among lawmakers, organized interests, and presidents to secure the ability to govern organizations. But first, we can benefit from considering a largely forgotten episode of American history from a time when the nation faced equally stark questions about the scope of security and the allocation of control over executive power.

FROM DHS TO FSA: ORGANIZATION, SECURITY, AND EXECUTIVE POWER IN THE ROOSEVELT ADMINISTRATION

Three-quarters of a century before Katrina and DHS, a different irony was playing out against a backdrop of sweeping legal and political change. During the 1930s the administration of Franklin Delano Roosevelt spurred major growth in the federal state by stressing government’s role as guarantor of the nation’s security.³⁷ With security as a lodestar, administration priorities led to now-familiar statutory changes catalyzing financial regulation, retirement and unemployment benefits, food safety policies, and energy rules. As the New Deal matured, security-related rationales taking subtly distinct forms—emphasizing international, geostrategic concerns—also bolstered the case for expansive federal power and even blended with the more expansive domestic risk-reduction ideas in the period before World War II. In 1939, for example, the administration wove together multiple strands of its security trope while...