THE ARSENAL OF DESTRUCTION: CREATION OF THE DEPARTMENT OF HOMELAND SECURITY

PART 3: FATHERLAND, MOTHERLAND, HOMELAND: THE ORIGINS OF A POLICE STATE WITHIN THE UNITED STATES

SUBPART 2: CREATION OF THE DEPARTMENT OF HOMELAND SECURITY

An inverse relationship exists between power wielded by Government and a Citizenry’s freedom from Government’s exercise of that power. As Government accumulates power, there is a concomitant loss of freedom and liberty in the Citizenry. This is axiomatically true. The Founders of the American Republic knew this. As power waxes unchecked in Government, the liberties and freedoms of Americans, written in stone in the Bill of Rights, wanes. There is irony in this. The Federal Government, created to serve the American People, turns on the People and requires the People to serve it. In so doing, the Government betrays the People, destroys personal autonomy, and undercuts the rule of law.

The Founders sought, through creation of a three branch system of Government, to prevent autocracy from taking root. The powers of Government are specific and limited. The powers not specifically bestowed on Government reside in the States and the People. The Rights and Liberties set down in the first Ten Amendments, comprising the Bill of Rights, of the U.S. Constitution, coupled with the specific and limited powers of the three salient Branches of Government as set forth in the first three Articles of the U.S. Constitution, if adhered to, ward against Government excess.

The People see through abridgment or curtailment of rights and liberties held by them. The Executive has secured unfettered power for itself, unto itself. Congress, in whom the Founders bestowed certain powers to prevent Executive overreach, is either oblivious to or complicit in this. Deference shown to another Branch of Government is laudable; acquiescence is regrettable, if, at times, forgivable; abject subservience is not.

Congress has abdicated its authority. Congress has allowed the Executive Branch to wage war without its approval. And Congress has enacted laws permitting the Executive Branch to run roughshod over the rights and liberties of the American People. In so doing, Congress is sealing its fate and the fate of the American people.

In the first decade of the 21^st Century, Congress enacted a plethora of Statutes negatively impacting the Bill of Rights. Although aimed, ostensibly, at bolstering internal security, these Statutes clearly impinge on and infringe the rights and liberties of Americans. Two of the earliest include the 2001 “USA Patriot Act” and the “Homeland Security Act of 2002.” The latter Act authorized the creation of a vast bureaucratic structure, the Department of Homeland Security (“DHS”). The stated purpose of the former is “to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.” The two work in tandem. Both threaten personal autonomy and undermine individual liberty.

DHS: THE BIRTH OF A MONSTER

Richard Armey, a Republican Congressman, sponsored the Bill that became the “Homeland Security Act of 2002” (Public Law 107-296; 116 Stat. 2135). A majority of Republicans in the House supported it. Most Democrats did not; nor did the President, George W. Bush, at least initially. He saw a new cabinet level office problematic and said so. See, “Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates,” Dara Kay Cohen, Mariano-Florentino Cuellar, and Barry R. Weingast, 59 Stan. L. Rev. 673 (December, 2006). Yet, a majority of House Republicans and every Senate Republican (save one who abstained) voted for enactment. So, President Bush reluctantly signed it into law on November 25, 2002. He has probably found it felicitous, and Obama certainly so. It has given the Executive Branch immense new powers. Republicans who generally and rightly bemoan the growth of Big Government were peculiarly pleased with their action here.

What did the American Public receive? The Public received a vastly expanded Government bureaucracy, a lumbering monolithic structure, consolidating several government agencies, duplicating many police and intelligence functions, expending tens of billions of dollars of taxpayer monies on programs that operate against Americans’ own interests, spreading its tentacles across the American landscape. DHS has flooded the States with money, taxpayer dollars, militarizing the States’ respective police forces, creating de facto agents of the Federal Government, driving a wedge between the States’ police agencies and their own residents.

“A ROSE BY ANY OTHER NAME. . . .”

Prior to the attack on the twin towers, no one inside the U.S. Government or outside it used the word, ‘homeland,’ to describe the United States. And, ‘homeland’ never appeared as an appellation for a Government office, bureau, agency, or cabinet level department; nor did the media refer to the United States by it. Now, though, it’s part of the Government lexicon. The mainstream news media uses it incessantly, drilling it into the public psyche. Much thought must have gone into its creation.

How did the word arise as a political descriptor? Neither the news media nor the Government explains this. So, let’s hazard a guess. The word is curiously wholesome sounding, non-threatening, almost soothing, and deceptively vague – a marvel of propaganda. But, the word belies its innocuous tone. As applied to a vast, ponderous, monstrous bureaucratic structure, the word, ‘homeland,’ is neither quaint nor sweet. The word’s usage today alludes to an earlier era. Its progenitors invoke totalitarian regimes. Recall the application of similar words to other polities: ‘fatherland’ as an appellation for Germany under the Third Reich, and ‘motherland’ as an appellation for Stalinist Russia.

The propagandists who came up with the word, ‘homeland,’ as a component of the “Department of Homeland Security,” (“DHS”) were clever. The word is a marvel of social conscious engineering. It subtly suggests a transformative process within the United States, overtly positive, but covertly negative: the devolution of a Nation State from its origins as a Democratic Republic to plutocratic or autocratic governance.

Use of ‘homeland’ as a descriptor for the United States and for a new cabinet level department is not, then, accident or happenstance. Use of the word ‘homeland’ is deliberate. Use of the word, ‘homeland,’ subtly ushers in a new political order: the rise of the Police State.

What does the “Department of Homeland Security” connote? If you know nothing about the structure of the Department, the name may suggest a vast network of internal, domestic control mechanisms. And, indeed, the Department is diffuse, a patchwork quilt, touching upon multiple facets of American life and conduct, expanding into all spheres of American life.

The mission of DHS is set forth, thus: “to secure the nation from the many threats we face. . . . Our duties are wide-ranging, but our goal is clear – keeping America safe.” See www.dhs.gov/about-dhs. The mission statement seems straightforward and noble if also self-serving. But the phrases, “our duties are wide-ranging,” and “keeping America safe,” have ominous overtones. In fact, DHS intends, condescendingly, to protect the American public from itself. That means, inter alia, arms control. Keeping America safe is a cloak for antiterrorism and national security measures which “are wide-ranging.” Implementation of antiterrorism measures means impinging on and infringing America’s sacred rights and liberties. Keeping America safe requires keeping tabs on the public, disarming the public, controlling the public. These are the policy objectives of DHS.

CONTROL OF THE CITIZENRY

A definite tension exists between DHS counterterrorism and national security mandates and America’s Bill of Rights. In a 2009 report, the DHS said the fear of gun regulations and bans is linked to a rise in right-wing extremist groups. See, “Quick on the Draw: Implicit Bias and the Second Amendment,” Adam, Benforado, 89 Or. L. Rev. 1 (2010), citing a DHS study. So, if DHS dubs a person “a right-wing extremist,”  ergo a “terrorist,” that person may, potentially, be denied his right to keep and bear arms.

But, who or what constitutes a right-wing extremist? If a person commits an act of violence against another because of one’s race or religion, and is duly convicted of a felony in a court of competent jurisdiction, that person may reasonably expect to lose the right to keep and bear arms. State Statutes provide for that. But, if a person merely has a fascination with firearms, professes a dislike for illegal immigrants, associates with others of like kind, and proclaims distrust of the Federal Government, under what legal theory does DHS purport to dispossess him of his firearms? Under what legal theory does DHS purport to limit that person’s right to associate with others? Under what legal theory does DHS purport to invade that person’s privacy? DHS could assert that person to be a right-wing extremist and, potentially, a “terrorist.” And, that, apparently, is enough. But, for all that, what might give birth to seeming extremism in a Nation’s citizenry?

May not extremism, existent in or perceived in, a Nation’s Citizenry be due to a corresponding extremism linked to Government’s unreasonable, illegitimate, unconscionable intrusion on its Citizenry? May not such extremism in a Nation’s Citizenry be directly linked to extremism in a Nation’s Government? Might not the one be the cause of the other? Is not the very existence of DHS an absurdly extreme response to a decidedly weak external threat? Or, perhaps the relative strength or weakness of such external threat to a Nation is beside the point. Perhaps such postulation of this or that external threat is only a pretext upon which a Government — this Government, the U.S. Government — seeks to exert its control over its Citizenry — that autocratic  or plutocratic, totalitarian rule may take shape, grow, express itself,  flourish, operate unimpeded — that after 200+ years a Republic — this Republic — may be decidedly and decisively laid to rest. 

So threats to a polity are exaggerated or simply manufactured. DHS is a vehicle through which Government fosters threats to hasten the end of — not preserve — our Democratic Republic. And, so fear of gun bans — fear of dismantling of the Second Amendment — is not an unreasonable fear in a Citizenry that realizes loss of its inalienable rights. The loss of such rights would not be taken lightly by the Citizenry; nor should it be. Extremism, an extreme response to the potential loss of a Citizenry’s inalienable rights, would not be unexpected. And an extreme response would not be unwarranted. Extremism would, in fact, be the reasonable expression of a Citizenry’s outrage toward its Government’s betrayal.

Government sees the extremism — the extreme outrage exhibited toward it or enacted against it — as a threat to it, and clamps down upon the populace. The threat to the polity, posed by the Citizenry against its Government, is no less the threat of the polity, exerted by the Government, against its Citizenry. The two go hand-in-hand.

The Citizenry, the internal “other,” not the external “other,” is seen as the “real threat” to Government. The Citizenry, as a body, is viewed as the “Terrorist.” At that moment the Security Police State is realized. The dream of the Security Police State for those who wish it is fulfilled. The Republic is undone. Citizens are merely subjects, “proles,” individuals who have no rights — individuals who have, at best, privileges, granted to them by the Government — privileges that, as grants, can and would be revoked by the Government at any time.

DHS tends to posit threats indiscriminately, under the guise of “keeping America safe.” It attempts to target ever more Americans as potential terror threats, and, in so doing, seeks to limit Americans’ Second Amendment right to keep and bear arms, Americans’ First Amendment right of free speech and right of association, and Americans’ Fourth Amendment right to privacy. DHS mandates butt up against the Bill of Rights. See, generally, “National Security Interest Convergence,” Sudha Setty, 4 Harv. Nat’l Sec. J. 185 (2112). Sudha says unequivocally that “Americans will see their rights hemmed by antiterrorism measures.” That’s cause for consternation.

Consider, in 2009, “the TSA {Transportation Security Administration, an agency transferred to and consolidated in DHS from the Department of Transportation} detained a man . . . who intended to fly from St. Louis to Washington D.C. carrying . . . cash he had generated selling bumper-stickers for ‘Campaign for Liberty,’ a Ron Paul-led organization. As the state of Missouri had warned the TSA that illegal militia members were likely supporters of third-party organizations and candidates, he was temporarily detained.” See, “Failing to Secure the Skies: Why America has Struggled to Protect Itself and How it Can Change,” Ian David Fiske, 15 Va. J.L. & Tech. 173 (Fall, 201).

DHS is a destroyer of Americans’ sacred rights and liberties because its policy considerations are aimed at the twin, ill-defined and unusually broad mandates of counterterrorism and national security – mandates at odds with the Bill of Rights. Case in point: the Federal Emergency Management Agency (“FEMA”). FEMA, like TSA, is now a component of DHS. You would think an agency whose purpose is disaster relief wouldn’t have anything to do with the regulation of civilian weapons. DHS changed that. In emergency situations – presumptively entailing insurrection – the first order of business of FEMA, as a component of DHS, is population suppression, not disaster relief. That became abundantly clear in the aftermath of Katrina. “Disaster Mythology and the Law,” Lisa Grow Sun, 96 Cornell L. Rev. 1131 (July 2011).

Although President Bush required DHS to backpedal from its outrageous stance during Katrina, DHS still functions like the Department of Defense (“DOD”). No tenable distinction exists between “terrorist” acts and natural disasters. Its massive domain, though, is “internal security,” not external military operations. DHS has been tasked with creation of an Incident Command System (“ICS”) that mirrors the DOD framework. See “Law and Lawyers in the Incident Command System,” Clifford J. Villa, 36 Seattle Univ. L. R. 1855 (Summer, 2013).

WHAT SHOULD CONGRESS DO TO REIN IN DHS?

The impact on Americans’ rights and liberties in the era of DHS will continue to be severely tested. DHS will take draconian steps that upend the Bill of Rights. DHS will do this under the guise of “keeping America safe,” consistent with its broad counterterrorism and national security mandates. While DHS may, occasionally, have to backpedal, Congress should place constraints on DHS before the fact. Having created this multi-billion dollar monolithic nightmare, Congress owes the American people that much.