Statement of Dr. James Jay Carafano

Senior Research Fellow

The Heritage Foundation

Before the House Budget Committee

Mr. Chairman, I am honored to testify before the committee today.[1]Thank you for the opportunity to discuss the proposal to merge the Department of Homeland Security's (DHS) Customs and Border Protection (CBP) and Immigration-Customs Enforcement (ICE) agencies. This was one of the key recommendations of the task force chaired by myself, on behalf of The Heritage Foundation, and David Heyman of The Center for Strategic and International Studies. The task force's report, DHS 2.0: Rethinking the Department of Homeland Security,[2] evaluated the department's capacity to fulfill its mandate as set out in the Homeland Security Act of 2002.

In my testimony, I will address, 1) the report's proposal for merging CBP and ICE and how it was developed, 2) standards that could be used to evaluate the recommendation, and 3) possible next steps for the department and Congress.

Before I discuss the recommendation to create a single border services agency, I would like to share with the committee our rationale for undertaking this study and why the task force feels it is imperative this issue receive prompt attention from Congress and the department's new leadership.

We have learned much since 9/11. Americans have had time to dwell on the challenges of protecting the nation against foreign threats in the 21^st century and to think about the kinds of institutions we need to address these dangers in the decades ahead. In particular, it is time to reconsider the role of the newly established Department of Homeland Security in this effort. Experience reminds us that it takes only a few years for bureaucracies to become entrenched. After that they are impossible to change. The creation of the Department of Defense is a case in point. During the debates over the 1947 National Security Act and again as president, Eisenhower lobbied for reorganizing the Pentagon to ensure the armed forces would work closely together. He failed to overcome the political opposition and the service parochialisms that blocked reforms. As a result, fundamental problems in joint operations went unaddressed until 1986 and the passage of the Goldwater-Nichols Act.[3]The lesson is clear. Fix them at the beginning or live with the mistakes for a long time.

The Recommendation to Merge CBP and ICE

The proposal to consolidate CBP and ICE was developed by a task force with members from academia, research centers, the private sector, and Congress and chaired by homeland security experts at The Heritage Foundation and The Center for Strategic and International Studies. The task force examined the effectiveness of the new department in four areas: management, roles and missions, authorities, and resources.

Based on analysis, conducted through seminars, an extensive literature search, and interviews, the task force developed 40 major recommendations for improving the oversight, organization, and operation of DHS. The findings and recommendations of the task force can be found on The Heritage Foundation's web site at http://www.heritage.org/Research/HomelandDefense/sr02.cfm.

Specifically regarding challenges related to border security the task force observed that before the creation of DHS, seven agencies, among others, were involved in securing our borders, enforcing our immigration laws, and protecting our transportation system. They were: (1) U.S. Customs; (2) the Immigration and Naturalization Service (INS); (3) the Executive Office of Immigration Review (EOIR); (4) the Bureau of Consular Affairs; (5) the U.S. Coast Guard; (6) the Transportation Security Administration (TSA); and (7) the Animal, Plant, Health Inspection Service (APHIS). Agency missions overlapped. It was difficult to resolve operational or policy conflict without resorting to a cumbersome, inefficient, and ineffective interagency process.

The creation of the DHS was supposed to consolidate agencies with overlapping missions and to better integrate the national border security effort. And it has succeeded to some degree. The INS has been abolished. Immigration border inspectors and Border Patrol Agents have been merged with most of U.S. Customs and the border inspectors of APHIS to create CBP. Customs and Immigration Investigators and Detention and Removal Officers were combined into a new organization, ICE, responsible for "internal enforcement." The two agencies were assigned to a Border and Transportation Security (BTS) directorate under the Undersecretary for Border and Transportation Security.

In "consolidating" responsibility for border, immigration, and transportation security, DHS actually increased the number of involved agencies to eight and created more problems that now need solving. In addition, it has failed to clearly delineate the agencies' missions within DHS that also have border, immigration, or transportation security responsibilities. 

Additionally, the task force concluded that the split of responsibilities between CBP and ICE was done without a compelling reason. The task force was not able to find any convincing argument that there were unsolvable problems in the legacy agencies of having border agents and internal enforcement investigators working in the same organization. Indeed, in various interviews, not one person was able to coherently argue why CBP and ICE were created as separate operational agencies. In addition, the Hart-Rudman Commission, which recommended creating a national homeland security agency before the 9/11 attacks, saw no need to split border and internal enforcement authority.[4] Some have analogized the separation to deciding to break up the New York Police Department into two separate agencies - one housing the uniformed "beat cops" (analogous to CBP's uniformed officers), and the other housing the detectives (analogous to ICE's plain-clothes investigators).

The reorganization exchanged one seam in U.S. security for another. Before the creation of DHS, "people" and "things" entering the country were handled under separate systems. There were no common policies, programs, or standards. Dealing with dangers that involved both required coordination between two different agencies. Today, travelers and goods are handled by an integrated system, but border operations and interior enforcement are now bifurcated into two different organizations creating a new requirement for interagency coordination.

Complicating the border security picture is the mission of TSA. While most Americans associate TSA with ground screeners at airports, the Aviation and Transportation Security Act creating TSA also charges TSA with responsibility "for security in all modes of transportation," including ensuring the "adequacy of security measures for the transportation of cargo." This has injected TSA into the realm of border security, and created friction with other DHS agencies historically in charge of securing the movement of cargo into the United States - CBP and Coast Guard. In addition, BTS has not been particularly effective in clearly delineating the relative responsibilities of CBP and TSA. 

Another complicating factor is that under the Homeland Security Act, responsibility for ensuring that terrorists do not obtain visas to enter the United States is shared between DHS and the State Department's (DOS') Bureau of Consular Affairs. Integration of their activities and supporting intelligence services represents a significant interagency challenge.[5] For example, the process for negotiating a Memorandum of Understanding between DOS and DHS delineating their respective responsibilities took over a year. 

DHS 2.0 proposed rationalizing border security and immigration enforcement by merging CBP and ICE and eliminating BTS. The directorate has neither the staff nor infrastructure to integrate the operations of CBP and ICE on a consistent basis. Nor does it have a policy operation with sufficient influence with the secretariat to resolve interagency conflicts. Merging CBP and ICE into a single border services agency will bring together all of the tools of effective border and immigration enforcement - Inspectors, Border Patrol Agents, Special Agents, Detention and Removal Officers, and Intelligence Analysts - and realize the objective of creating a single border services agency. 

With the merger of CBP and ICE into a single agency, there is no need for the BTS "middle management" layer. All operational agencies should have a direct reporting relationship to the Secretary via the Deputy. This will allow for a better, DHS-wide (including the Coast Guard) policy and operational strategic approach to border security matters.

Additionally, splitting responsibility for visa issuance and management between DHS and DOS was a mistake. Operations could be managed more efficiently under one department and would place responsibility and accountability in one place. The choice is difficult. Arguably DOS is better positioned to consider the diplomatic, economic, and cultural issues at stake in issuing visas. On the other hand, if DHS were responsible it could seamlessly integrate visa management into a merged border services agency, thus overseeing the movement of people and goods from the foreign point of origin to the interior of the United States. Any consideration of a CBP/ICE merger should also rethink the management of activities for visa issuance and monitoring.

All the Right Moves?   

Perhaps the most valid criticism of the DHS 2.0 proposal to create a single border services agency is that it would heap more turmoil on organizations that have already seen substantial disruption. In short, critics argue the pain of further change is not worth the gain. Three measures could serve as a guide for determining whether further reorganization is warranted. Any proposed changes should:

• Improve overall management of the department as a first priority;
• Divide department activities between operational responsibilities and support functions under different chains of command.
• Implement a future vision of the department.

The proposal to create a single border services agency should be judged against these standards. I would like to address each in turn.

Focusing on Management

In a recent report the DHS Inspector General identified department-wide management as a significant issue of concern. "Integrating its many separate components into a single, effective, efficient, and economical department," the IG wrote, "remains one of DHS' biggest challenges."[6] The weaknesses in DHS management are critical because they cut against the core rationale for passing the Homeland Security Act: gaining the synergy of having most of the key federal agencies with homeland security responsibilities grouped in one department.

The creation of a single border services agency should only be undertaken if it will help address the most significant management challenges of DHS.

The task force concluded that merging CBP and ICE provides an opportunity to substantially strengthen the DHS secretariat. Currently, the undersecretary positions in DHS are used to command subordinate agencies, rather than contributing to the cross-cutting integration of department activities and strengthening coordination with other federal agencies, state and local governments, the private sector, and foreign governments. Merging CBP and ICE into a single agency would eliminate the need for a BTS Undersecretary and allow the department to use that position to enhance the capacity of the secretariat to provide stronger leadership for the department overall.

DHS 2.0 proposed to have the new border services agency report directly to the Deputy Secretary, who would act as the department's chief operating office (COO), as well assume the responsibilities of the Undersecretary for Management. This change would address one of the key concerns expressed in the DHS IG report on the major management challenges of the department-confusing and duplicative reporting chains. Currently, DHS employs a concept called "dual accountability," where agency staff are asked to report both through their undersecretaries and chief officers in the secretariat.[7] This dual reporting system has proven contentious and inefficient. Eliminating the "middle management" over operating agencies will create a single chain of command and allow the deputy to more effectively direct financial, information management, acquisition, and personnel initiatives that cut across the DHS.

Consolidation is also important for making the deputy's duties manageable. If the deputy is to serve as an effective COO, his span of control needs to be reasonable. This would require consolidation of existing organizations within the DHS. The merger of ICE and CBP help reduce the scope of COO responsibilities.

The need for a BTS directorate over ICE and CBP, can also be eliminated by moving oversight functions, such as policy, planning, and stakeholder outreach, into the secretariat where they more properly belong. To address this, our report also called for reconfiguring two undersecretary positions. First, DHS 2.0 proposed an Undersecretary for Policy and Planning, which would include an Assistant Secretary for International Affairs. Second, the report recommended eliminating the Undersecretary for Emergency Preparedness & Response (EP&R) and replacing this position with an Undersecretary for Protection and Preparedness who would oversee critical infrastructure protection, preparedness, and state and local governments/private sector coordination efforts. This would consolidate the following agencies: the Infrastructure Protection component of the Information Analysis and Infrastructure Protection Directorate; Office of State and Local Government Coordination and Preparedness (OSLGCP); the non-operational transportation infrastructure protection mission of TSA, the "preparedness" piece of the EP&R Directorate; the Office of Private Sector Liaison, and; grant making authority for DHS.

One consideration for the Congress and the department's new leadership is the potential of using the creation of a single border services agency as a catalyst for overall reforms in the department, improvements that would enhance the capacity of the secretariat to integrate and coordinate activities across DHS. 

Operating Responsibilities and Support Functions

A second measure that should be used to judge the value of creating a single agency is whether this initiative would sharpen the operational effectiveness of the department. Dividing functional responsibilities in the department between "operational" agencies and "support" organizations is a sound management principle because it focuses agencies on critical missions. It also helps to develop strong institutional cultures. The Defense Department explicitly follows this model. Combatant commanders are charged with "running the war." The services are responsible for "raising, training, preparing, and sustaining" the force. It is a model that works well because it encourages organizations to focus on their core competencies. A DHS analogy would be to establish robust operational agencies that concentrate on stopping terrorists and conducting the department's other statutory missions apart from the staffs and directorates responsible for conducting planning, coordination, policymaking, budgeting, and support activities for the department as a whole.

A single border services organization responsible for visa issuance and monitoring, managing points of entry, patrolling the borders, and interior enforcement should only be established if it will create a stronger and more effective operating agency.

In recent hearings before the Senate Homeland Security and Government Affairs Committee, Michael Wermuth, director of Homeland Security at RAND, was skeptical of the proposal to merge CBP and ICE concluding that "a good argument can be made that the skills required for the performance of those separate tasks require different recruiting, retention, training performance evaluation, operational procedures, and other related activities."[8]Indeed, both agencies are currently struggling with the challenge of cross-training skills and building a common culture among agency personnel. Wermuth argued for a comprehensive assessment to determine whether a single organization could appropriately manage the plethora of skills and activities involved in overseeing the movement of goods, people, and services across America's borders.

Concerns over the capacity of an integrated agency to train, manage, and retain personnel are worthwhile considerations. These, however, are not issues of organizational design, but challenges for human capital and information technology programs. Indeed, creating a single operating agency might enhance prospects for establishing more robust personnel programs, offering a wider range of career progression and professional development options, opportunities for both cross-training and specialization, and an increased capacity to shift and surge resources. In addition, creating a single agency may offer advantages for integrating and consolidating information technology programs. Any consideration to merge CBP and ICE must be made in tandem with discussions over the scope and structure of the human capital and information technology initiatives that will be instituted to support consolidating the agencies.[9]

Envisioning the Future

A third way to evaluate the benefit of further organizational innovation is to measure how change will contribute to the long-term development of the department. One hotly debated issue relates to the division of roles and missions within the department. The creation of DHS was supposed to consolidate agencies with overlapping and complementary missions. Since its formation, DHS has made some positive efforts to group the right activities under the right organization. Moving the Office of Air and Maritime Interdiction under CBP and shifting the Federal Marshal Service to ICE are cases in point. However, a broader assessment needs to be made across the department. There is reluctance to undertake such a review based on the argument that the organizations have not yet absorbed all the change heaped upon them. Such thinking is shortsighted. The war against terrorism will be a protracted conflict and DHS needs to be structured and resourced for a long campaign.

DHS needs to be organized not to accommodate the present, but to build toward the ideal organization of the future. Therefore, the department needs to articulate how it envisions conducting its missions five to ten years from now and let this vision drive the organizational design, particularly the structure of border security operations.

The department's current organization reflects an outdated vision of how to protect America's borders. Visa issuance, border security, and internal enforcement are divided into three separate agencies, suggesting that threats and countermeasures can be neatly segmented in discrete activities. There are, however, no frontiers in 21^st century national security, nor are all border security issues best handled at the border. Protecting the United States against terrorist threats and significantly reducing transnational crime (e.g. drug, arms, and human trafficking) and environmental dangers (such as contagious diseases and invasive species), as well as illegal entry and unlawful presence in the United States requires activities that address these challenges from the point of foreign origin through transiting the border, and within U.S. territory. Distinguishing clear lines of responsibility between foreign, border, and domestic security is a thing of the past. Nor can responsibilities for security, promoting economic growth, and protecting the liberties of American citizens (as well as visitors and international business partners) be considered in isolation.  

DHS' future vision must not only speak to how to integrate activities, but how to establish priorities and make trade-offs, focusing investments on where the nation can get the biggest "bang" for its security "buck." At least three major issues should be addressed.

First, the vision must make hard choices in deciding between investments in monitoring legal means of trade and travel and combating illegal entry into the United States. Improving the monitoring of legal means to enter the country, including improving physical infrastructure at points of entry and promoting programs like US-VISIT[10]and the Smart Borders Initiative,[11] should have the highest priority. Most goods, services, and people enter and exit the United States through legitimate networks. These networks are the lifeline of the U.S. economy and must be appropriately managed and protected. Likewise, virtually all known terrorists who have entered the United States came in through legal channels.[12] In addition, as the United States improves its capacity to reduce entry into the country at places other than legal points of entry, illicit activities attempting to penetrate legal networks of trade and travel will likely increase. Effective border services must already be in place to meet this challenge, if the United States hopes to improve its overall security.

Second, strategic choices need to be made on how to best affect the flow of illegal entry and unlawful presence in the United States, as well as transnational criminal activities and environmental threats. Too often the assumption is made that the best place to reduce illegal and illicit activity is by interdicting it at the border. In practice, internal enforcement policies and programs, followed by working with point of origin and transit countries, probably offer a greater return on investment. In the long term, for example, initiatives such as effective workplace enforcement (which discourages the employment of individuals who are unlawfully present in the United States), domestic counterterrorism investigations (including means to track down criminal aliens),[13]and the Millennium Challenge Account[14] (which promotes policies that advance economic growth, sound governance, and the rule of law in foreign countries) will have a greater impact on illegal entry and unlawful presence than hiring additional border guards.

Third, addressing the challenge of illegal entry between the points of entry cannot be ignored, but clear priorities have to be established. Investments must be made in resources that create a system-of-systems approach to security. Rather than trying to control the entire border, the United States needs a system that direct the right capabilities to the right place at the right time to provide an appropriate response. Key investments include a combination of high speed and armed airborne assets and robust airborne sensor capabilities. These assets need to be linked to an intelligence and early warning network that provides knowledge of activities in the maritime domain and along the border, as well as to means to effectively analyze and share that knowledge. Modernizing CBP's air and marine interdiction capabilities in concert with increasing funding for the Coast Guard's Integrated Deepwater acquisition program, for example, ought to take precedence.[15]

To address these three issues, DHS must conduct a national assessment to determine the system-of-systems it requires. Any system will need to include all the "layers of security" that impact on securing the border. Congress and the administration should use this analysis to determine where their efforts should be directed and whether creating a single border services agency with jurisdiction over all activities related to the transiting of U.S. borders would improve the department's allocation of assets and effectiveness.

Next Steps

DHS 2.0 called for the President and Congress to establish a non-partisan commission to review the performance of the department and assess its capacity to fulfill the missions outlined in the Homeland Security Act and report back within six months. Without permanent oversight committees in the Senate and House, the task force felt Congress would be unable to effectively address the challenge of restructuring the DHS. Things have changed. The task force applauds the action taken in both chambers to create permanent committees. With Congressional oversight of the department's management now consolidated in appropriate committees, Congress could consider alternative paths for moving forward. One would have Congress legislate key management reforms and establish a routine authorization process. Then, Congress, jointly with the leadership of DHS, can address reorganization issues, such as merging CBP and ICE, in a more deliberative manner through a combination of reviews conduct by DHS and an independent panel answering to the Congress.[16] This strategy might proceed as follows.

Step #1: Legislate Undersecretaries for Policy and Protection and Preparedness and abolish the Undersecretaries for Emergency Preparedness and Response and Management. Establish Chief Operating Officer functions under the Deputy Secretary.

Step #2: Implement an authorization process for DHS. An authorization bill for the DHS could serve as a critical statutory management tool providing the means to exercise stronger oversight of important DHS activities such as key personnel programs, performance of critical missions, major research programs, and information technology investments.

Step# 3: Establish a requirement for periodic reviews. Congress should establish a requirement that DHS conduct quadrennial reviews of the department's strategies, force structure, resources, and appreciation of the threat. The Quadrennial Homeland Security-Review (QHSR) should be timed to coincide with the mid-point of the presidential term. The first QHSR should be specifically tasked to establish a future security vision. That vision will inform the decision over whether to merge CBP and ICE.

Step #4: Create a one-time National Security Review Panel. In parallel with the first QHSR, the Congress should establish a non-partisan National Security Review Panel (NSRP). The NSRP should be charged with providing an independent assessment of the QHSR as well as assessing the efforts of the DHS in the context of larger national security programs and strategies. 

Conclusion

The creation of the DHS was supposed to consolidate agencies with overlapping missions and to better integrate the national border security effort. Any proposal, including merging CBP and ICE should be evaluated against whether it will improve the overall management of DHS, whether it will further delineate department activities between operational and support functions with each under a separate chain of command, and whether the action implements a future strategic vision of the department.

Once again, thank you, Mr. Chairman and the rest of the Committee for holding this hearing and for inviting me to participate. I look forward to answering any questions you might have.