Department of Homeland Security Reorganization: The 2SR Initiative

CRS Report for Congress
Department of Homeland Security Reorganization:
The 2SR Initiative
Updated September 22, 2006
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Henry B. Hogue
Analyst in American National Government
Government and Finance Division


Congressional Research Service ˜ The Library of Congress

Department of Homeland Security Reorganization:
The 2SR Initiative
Summary
The Department of Homeland Security (DHS) was mandated by the Homeland
Security Act of 2002. The creation of DHS resulted in a reorganization of the
executive branch on a scale not experienced since the establishment of the
Department of Defense (DOD) half a century ago. Originally denominated the
National Military Establishment at birth in 1947, DOD was given its current name
and underwent the first of what would be a series of structural modifications through
statutory amendments in 1949. A similarly complex organization, DHS was the
product of legislative compromises, and it was anticipated that congressional
overseers, as well as department officials, would monitor the management and
operations of DHS with a view to adjusting its structure as conditions warranted. In
this regard, Section 872 of the Homeland Security Act authorizes the Secretary of
Homeland Security to reorganize functions and organizational units within DHS,
subject to specified limits. In late January 2003, as components of DHS were being
transferred to the department’s operational control, President George W. Bush
modified his original reorganization plan for DHS to reconfigure the functions of
certain border security agencies into two new components — the Bureau of Customs
and Border Protection and the Bureau of Immigration and Customs Enforcement —
within the department’s Border and Transportation Security Directorate.
In one of his first actions as Secretary of Homeland Security Tom Ridge’s
successor, Michael Chertoff, on March 2, 2005, the day before he was sworn in as
Secretary, announced in testimony before the House Appropriations Subcommittee
on Homeland Security that he was “initiating a comprehensive review of the
Department’s organization, operations, and policies.” This effort, he said, would
begin “within days.” The results of that undertaking, which came to be known as the
Second Stage Review or 2SR, were made public in mid-July. As Secretary Chertoff
explained, 2SR involved the evaluation of a variety of operational and policy issues,
and among those was “the DHS organizational structure, to make sure that our
organization is best aligned to support our mission.” However, no report on the 2SR
process and reforms was issued. This report focuses primarily on the conclusions
and proposals resulting from 2SR pertaining to organization and managerial lines of
authority matters (H.R. 4009; S. 1866). Initial issues concerned the means for
realizing the proposed 2SR reorganization; the efficiencies and effectiveness that
would result with the proposed flatter, but more sprawling, restructuring; and how
new leadership positions would be established, filled, compensated, and situated in
the DHS hierarchy. Some aspects of these issues lingered for a while after the
implementation of the 2SR plan on October 1, 2005. Approximately one year later,
however, it appeared that Secretary Chertoff, exercising his reorganization authority,
had largely realized his planned 2SR restructuring, although some legislative changes
in this regard awaited finalization. This report will be updated as events warrant.



Contents
Background ......................................................1
The 2SR Initiative.................................................3
Reorganization Proposals........................................3
Policy ...................................................4
Intelligence ...............................................5
Operations ...............................................8
Preparedness .............................................9
Other Entities............................................11
Rejected CBP-ICE Merger..................................13
Early Organizational Issues.....................................15
Reorganization Authority...................................15
Increased Direct Reports...................................16
Other Concerns..........................................17
Early Leadership Issues........................................18
PAS Assistant Secretaries..................................19
PA Assistant Secretaries...................................21
SES Assistant Secretaries..................................21
Other Proposed Positions...................................22
Congress and Prescribing the DHS Leadership Hierarchy.........22
Later Organizational Issues.....................................24
Effecting Reorganization...................................24
FEMA Status............................................25
CPB-ICE Merger?........................................26
Chief Intelligence Officer..................................26
Chief Medical Officer.....................................27
Later Leadership Developments and Issues.........................28
Legislation ..................................................31
Appendix 1:2SR Initiative Chronology................................34
Appendix 2:Glossary..............................................36



Department of Homeland Security
Reorganization: The 2SR Initiative
Secretary of Homeland Security Michael Chertoff, on July 13, 2005, announced
a six-point agenda for the Department of Homeland Security (DHS) designed to
ensure that its policies, operations, and structures are best aligned to address potential
threats to the nation, both today and in the immediate future.1 This agenda resulted
from what he called a Second Stage Review, or 2SR, which had been launched in
early March, just after he assumed office, and had been conducted over the next three
months. It involved, he said, “a systematic evaluation of the Department’s
operations, policies and structures.” Indeed, as Secretary Chertoff explained, 2SR
involved the evaluation of a variety of operational and policy issues, and among those
was “the DHS organizational structure, to make sure that our organization is best
aligned to support our mission.” However, no report on the 2SR process and
proposed reforms was issued. This report focuses primarily on the conclusions and
proposals resulting from 2SR pertaining to organization and managerial lines of
authority matters.
Background
DHS was mandated by the Homeland Security Act of 2002.2 The creation of
DHS resulted in a reorganization of the executive branch on a scale not experienced3
since the establishment of the Department of Defense (DOD) half a century earlier.
Originally denominated the National Military Establishment at birth in 1947, DOD
was given its current name and underwent the first of what would be a series of
structural modifications through statutory amendments in 1949.4 A similarly
complex organization, DHS was the product of legislative compromises, and it was
anticipated that congressional overseers, as well as department officials, would


1 U.S. Department of Homeland Security, “Secretary Michael Chertoff, U.S. Department of
Homeland Security Second Stage Review Remarks,” Ronald Reagan Building, Washington,
DC (July 13, 2005), pp. 1-2, available at [http://www.dhs.gov/dhspublic/
display?theme=44&content=4597&print=true].
2 116 Stat. 2135; 6 U.S.C. § 101 et seq.; see Harold C. Relyea, “Organizing for Homeland
Security,” Presidential Studies Quarterly, vol. 33, Sept. 2003, pp. 602-624.
3 See 61 Stat. 495 at 499.
4 63 Stat. 578. For an account of the creation of DOD and its early organizational
refinement, see Paul Y. Hammond, Organizing for Defense: the American Military
Establishment in the Twentieth Century (Princeton, NJ: Princeton University Press, 1961);
Alice C. Cole, et al., The Department of Defense: Documents on Establishment and
Organization, 1944-1978 (Washington: GPO, 1978).

monitor the management and operations of DHS with a view to adjusting its structure
as conditions warranted. In this regard, Section 872 of the Homeland Security Act
authorizes the Secretary of Homeland Security to reorganize functions and
organizational units within DHS, subject to specified limits.5 Secretary Chertoff
made use of this authority to implement some of his 2SR plans. For a period of 12
months after the effective date of the Homeland Security Act, Section 1502 vested
the President with temporary authority to prescribe a reorganization plan for DHS,
and subsequent modifications of that plan. In late January 2003, as components of
DHS were being transferred to the department’s operational control, President
George W. Bush modified his original reorganization plan for DHS to reconfigure
the functions of certain border security agencies into two new components — the
Bureau of Customs and Border Protection and the Bureau of Immigration and
Customs Enforcement — within the department’s Border and Transportation Security
Directorate (BTS).6
When it began operations, DHS was largely organized like a hand — the palm
being the office of the Secretary/Deputy Secretary with the thumb and fingers being
individual directorates for (1) management, (2) science and technology, (3)
information analysis and infrastructure protection, (4) border and transportation
security, and (5) emergency preparedness and response. In addition, however,
approximately two dozen other units within the department, but not located within
one of the directorates, reported directly to the Secretary. These included program
entities, such as the United States Coast Guard and United States Secret Service, and
units within the office of the Secretary, such as the Office of International Affairs and
Office of State and Local Government Coordination, as well as some Assistant
Secretaries. At the time of its creation, DHS had about 170,000 employees, only
18,000 of whom worked in the Washington, DC, area, indicating that the new
department had a considerable field organization.
In one of his first actions as Secretary of Homeland Security Tom Ridge’s
successor, Michael Chertoff, on March 2, 2005, the day before he was sworn in as
Secretary, announced in testimony before the House Appropriations Subcommittee
on Homeland Security that he was “initiating a comprehensive review of the
Department’s organization, operations, and policies.” This effort, he said, would
begin “within days.”7


5 116 Stat. 2243; 6 U.S.C. § 452.
6 See Weekly Compilation of Presidential Documents, vol. 39, Feb. 3, 2003, p. 136; U.S.
Department of Homeland Security, “Border Reorganization Remarks by Secretary Ridge,”
Port of Miami, Miami, FL (Jan. 30, 2003), available at [http://www.dhs.gov/
dhspublic/display?theme=44&content=419&print=true]; U.S. Department of Homeland
Security, “DHS Announces Border Security Reorganization,” Washington, DC (undated),
available at [http://www.dhs.gov/dhspublic/display?theme=44&content=422&print=true];
U.S. Department of Homeland Security,” Border Reorganization Fact Sheet,” Washington,
DC (Jan. 30, 2003), available at [http://www.dhs.gov/dhspublic/
display?theme=43&content=4236&print=true].
7 U.S. Department of Homeland Security, “Statement by Secretary of Homeland Security
Michael Chertoff before the House Appropriations Homeland Security Subcommittee,”
(continued...)

The 2SR Initiative
In his July 13, 2005, remarks concerning the results of the 2SR initiative,
Secretary Chertoff explained that the work of that effort had been conducted utilizing
“18 action teams — involving more than 250 DHS staff — to evaluate specific
operational and policy issues.” The participants were asked “how would you solve
a particular problem,” and “how would you take the best solutions and implement
them aggressively.” He noted, as well, that those immediately directing the 2SR
effort also “actively sought opinions from hundreds of public and private partners at
the federal, state, local, tribal and international levels.” From these deliberations and
consultations the following six-point agenda resulted.

1. Increase preparedness, with particular focus on catastrophic events.


2. Strengthen border security and interior enforcement and reform
immigration processes.

3. Harden transportation security without sacrificing mobility.


4. Enhance information sharing with our partners, particularly with state, local
and tribal governments and the private sector.
5. Improve DHS stewardship, particularly with stronger financial, human
resource, procurement and information technology management.

6. Re-align the DHS organization to maximize mission performance.


“In the weeks and months to come,” said the Secretary, “the Department will
launch specific policy initiatives in a number of key areas” relative to the six-point
agenda. 8
Reorganization Proposals
In his July 13, 2005, remarks concerning the results of the 2SR effort, Secretary
Chertoff said that he had “concluded that some structural changes are needed at DHS
to improve mission performance. Modest but essential course corrections regarding
organization,” he said, “will yield big dividends. Most can be accomplished
administratively — a few require legislation.” He then announced “organization
changes that include four important areas of focus: ... (1) formation of a new,
department-wide policy office; (2) significant improvements in how DHS manages
its intelligence and information sharing responsibilities; (3) formation of a new
operations coordination office and other measures to increase operational
accountability; and (4) an important consolidation effort that integrates the9
Department’s preparedness mission.” These initiatives are discussed below.


7 (...continued)
Washington, DC (Mar. 2, 2005), available at [http://www.dhs.gov/dhspublic/
display?theme=45&content=4381&print=true]; Chris Strohm, “New DHS Secretary
Launches Total Review of Operations,” GovExec.com Daily Briefing, Mar. 2, 2003,
available at [http://www. Govexec.com/dailyfed/0305/030205c1.htm].
8 U.S. Department of Homeland Security, “Secretary Michael Chertoff, U.S. Department of
Homeland Security Second Stage Review Remarks,” pp. 2-3.
9 Ibid., p. 6.

Policy. Secretary Chertoff “proposed creation of a central policy office led by
an Under Secretary for Policy,” which “will bring together our international affairs
staff, a significant and new strategic planning capability, DHS-wide policy
development assets, a senior policy advisor focused on refugee asylum policies, and
enhanced private sector liaison resources. Collectively,” he continued, “ the Policy
Directorate will strengthen the Department’s ability to develop and plan vital
policies.” Such an office, he noted, “is not a new idea — it builds in part upon the
foundational work of the Border and Transportation [Directorate] policy staff, which10
is to be folded into the new policy directorate.”
The authors of an August 17, 2004, Heritage Foundation report were among the
first to propose an Under Secretary of Policy for DHS and a consolidation of the
department’s policy analysis and development offices under the direction of such an
officer.11 The recommendation was reiterated in more elaborate form in a December12
13, 2004, Heritage Special Report on DHS reform. At a January 26, 2005, hearing
of the Senate Committee on Homeland Security and Governmental Affairs, the chair
of the panel, Senator Susan Collins, observed that “there seemed to be unanimity on
the need for an Under Secretary for Policy.”13
Shortly after the Senate committee hearing, when the justification for the DHS
Office of the Secretary and Executive Management budget request was unveiled, a
proposed Office of Policy, Planning and International Affairs (OPPIA) was revealed.
Headed by an Assistant Secretary, the new entity was to result from an expansion of
the department’s existing Office of International Affairs, and was described in the14
following terms.
The Office of Policy, Planning, and International Affairs will be responsible for
both strategic policy development and oversight of all program policy efforts in
the Department, including various economic, regulatory, legislative, foreign and
policy analysis functions which are critical to forming Departmental policies.
This office oversees the Policy Review Board, which evaluates, promotes, and
tracks developing policies throughout the Department. The Policy Review Board
will be the vehicle by which senior leadership within the Department can assess
proposals for major policy initiatives, ensure these initiatives are consistent with


10 Ibid., pp. 6-7.
11 James Jay Carafano, Richard Weitz, and Alane Kochems, “Department of Homeland
Security Needs Under Secretary for Policy,” Heritage Foundation Backgrounder No. 1788
(Washington: Aug. 17, 2004).
12 James Jay Carafano and David Heyman, “DHS 2.0: Rethinking the Department of
Homeland Security,” Heritage Special Report SR-02 (Washington: Dec. 13, 2004).
13 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs,
Department of Homeland Security: The Road Ahead, hearing, 109th Cong., 1st sess., Jan. 26,

2005 (Washington: GPO, 2005), p. 43.


14 The Office of International Affairs was originally mandated by Section 879 of the
Homeland Security Act (116 Stat. 2245; 6 U.S.C. § 459), and its responsibilities were
expanded by the Secretary pursuant to his reorganization authority in Section 872 permitting
him to allocate functions and alter organizational units within DHS (116 Stat. 2243; 6
U.S.C. § 452).

strategic goals and priorities, enhance inter-departmental engagement in policy15
development and provide clear leadership on policy initiatives.
House appropriators recommended $8.7 million for OPPIA, which the House
subsequently approved.16 Senate appropriators recommended $7.25 million for
OPPIA, and indicated an expectation that it would assume the functions of the
Operational Integration Staff, which assists the DHS leadership with coordination
and integration of cross-organizational element missions, operational activities, and
programs across the department’s headquarters directorates and direct reporting17
agencies. The Senate later approved this funding for OPPIA, but it did not appear
that either DHS or House appropriators expected the new policy office to assume the
functions of the Operational Integration Staff.
In compliance with Section 872 of the Homeland Security Act authorizing him
to reorganize functions and organizational units within DHS, subject to specified18
limits, Secretary Chertoff sent a July 13, 2005, letter to Congress “with notification
of the reallocation of functions and the establishment, consolidation and alteration
of organizational units within the Department of Homeland Security,” and indicating
he intended “to implement these changes on October 1, 2005.”19 He noted the effort
to establish OPPIA under the leadership of an Assistant Secretary, and indicated he
had “also asked Congress for legislation that would elevate this Assistant Secretary
to an Under Secretary within the Department.” The Under Secretary would head the
Directorate for Policy, when established. He also identified various “existing
organizational units that ... will be relocated to this new centralized policy office,
including the Office of International Affairs, the Special Assistant to the Secretary
for Private Sector Coordination, the Border and Transportation Security Policy and
Planning Office and elements of the Border and Transportation Security Office of
International Enforcement, the Homeland Security Advisory Committee, and the
Office of Immigration Statistics.” He added that “a strategic policy planning office
and a refugee policy coordinator will be established within the new policy apparatus.”
Intelligence. In his July 13, 2005, 2SR remarks, Secretary Chertoff
announced “that the Assistant Secretary for Information Analysis will be designated


15 U.S. Department of Homeland Security, Department of Homeland Security: Office of the
Secretary and Executive Management, Fiscal Year 2006 Congressional Justification
(Washington: n.d.), p. OSEM-2.
16 U.S. Congress, House Committee on Appropriations, Department of Homeland Security
Appropriations Bill, 2006, report to accompany H.R. 2360, 109th Cong., 1st sess., H.Rept.

109-79 (Washington: GPO, 2005), p. 5.


17 U.S. Congress, Committee on Appropriations, Department of Homeland Security
Appropriations Bill, 2006, report to accompany H.R. 2360, 109th Cong., 1st sess., S.Rept.

109-83 (Washington: GPO, 2005), pp. 9-11.


18 See 116 Stat. 2243; 6 U.S.C. § 452; CRS Report RS21450, Homeland Security: Scope of
the Secretary’s Reorganization Authority, by Stephen R. Vina.
19 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, Chairman, Committee on Homeland Security, U.S. House of
Representatives, Washington, DC, July 13, 2005, p. 2 (identical letter sent to other
congressional leaders).

as the Chief Intelligence Officer,” who “will head a strengthened Information
Analysis division that will report directly to me,” and “will ensure that intelligence
is coordinated, fused and analyzed within the Department so that we have a common
operational picture. It will also provide,” he continued, “a primary connection
between DHS and others within the intelligence community — and a primary source
of information for our state, local, and private sector partners.”20
When DHS was chartered with the Homeland Security Act of 2002, the
Directorate for Information Analysis and Infrastructure Protection (IAIP) was vested,
among other duties, with responsibility “[t]o access, receive, and analyze law
enforcement information, intelligence information, and other information from
agencies of the Federal Government, State and local government agencies (including
law enforcement agencies), and private sector entities, and to integrate such
information in order to (A) identify and assess the nature and scope of terrorist
threats to the homeland; (B) detect and identify threats of terrorism against the United
States; and (C) understand such threats in light of actual and potential vulnerabilities
of the homeland.”21 However, several weeks after the Homeland Security Act was
signed into law, this provision was undermined. In his 2003 State of the Union
Address, President George W. Bush announced he was instructing the leaders of the
Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), DHS, and
DOD “to develop a Terrorist Threat Integration Center [TTIC], to merge and analyze
all threat information in a single location.”22 TTIC had the potential for at least
paralleling IAIP if not usurping its role. A little over a year later, in an April 13,
2004, letter to Senators Susan Collins and Carl Levin jointly signed by Secretary of
Homeland Security Tom Ridge, Director of Central Intelligence George J. Tenet, FBI
Director Robert S. Mueller III, and TTIC Director John O. Brennan, the relationship
between TTIC and IAIP was explained as follows.
TTIC has the primary responsibility ... for terrorism analysis (except information
relating solely to purely domestic terrorism) and is responsible for the day-to-day
terrorism analysis provided to the President and other senior policymakers. ...
IAIP has the primary responsibility for matching the assessment of the risk posed
by identified threats and terrorist capabilities to our Nation’s vulnerabilities [and]
... for providing the full range of intelligence support ... to the DHS Secretary,23
other DHS leadership, and the rest of DHS.
The Intelligence Reform and Terrorism Prevention Act of 2004 transferred24
TTIC to the newly created National Counterterrorism Center (NCTC), which was
designated “the primary organization ... for analyzing and integrating all intelligence


20 U.S. Department of Homeland Security, “Secretary Michael Chertoff, U.S. Department
of Homeland Security Second Stage Review Remarks,” p. 7.
21 116 Stat. 2146; 6 U.S.C. § 121(d)(1).
22 Weekly Compilation of Presidential Documents, vol. 39, Feb. 3, 2003, p. 113.
23 Letter from Secretary of Homeland Security Tom Ridge, Director of Central Intelligence
George J. Tenet, FBI Director Robert S. Mueller III, and TTIC Director John O. Brennan
to the Honorable Susan M. Collins and Carl Levin, United States Senate, Washington, DC,
April 13, 2004.
24 P.L. 108-458, Sec. 1092; 118 Stat. 3697.

possessed or acquired by the United States Government pertaining to terrorism and
counterterrorism, excepting intelligence pertaining exclusively to domestic terrorists
and domestic counterterrorism,” and, among other duties, conducting “strategic
operational planning for counterterrorism activities, integrating all instruments of
national power, including ... homeland security ... activities,” and assigning “roles
and responsibilities as part of its strategic operational planning duties to lead
Departments or agencies, as appropriate, for counterterrorism activities that are
consistent with applicable law.”25
“Following the passage of the Intelligence Reform and Terrorism Prevention
Act of 2004, the creation of the National Counter Terrorism Center (NCTC) and the
Terrorist Screening Center (TSC),” it was observed in a recent report by the House
Committee on Appropriations, “IAIP has seen the scope of its national intelligence
mission reduced,” and DHS was directed “to review the mission and functions of
IAIP in light of the passage of the Intelligence Reform and Terrorism Prevention Act
of 2004, the creation of the NCTC and the TSC, and provide a report ... on the future
role IAIP will have in the intelligence community.”26 In a counterpart report, the
Senate Committee on Appropriations concurred, and directed IAIP and DHS “to
undertake a review of IAIP’s resource requirements based on a comparative review
of IAIP’s intelligence responsibilities, as defined in the Homeland Security Act of
2002, with those following the passage of the Intelligence Reform and Terrorism
Prevention Act of 2004” and submit the findings of this review to the committee.27
In his July 13, 2005, reorganization notification letter to Congress, Secretary
Chertoff stated that “the Department has more than 10 different intelligence offices,
including those in Customs and Border Protection (CBP), Transportation Security
Administration (TSA), United States Coast Guard (USCG), and Immigration and
Customs Enforcement (ICE).” The largest intelligence office, he noted, was in IAIP.
To accomplish the department’s intelligence and related functions more effectively,
he proffered, “I will be elevating the Information Analysis resources, presently part
of the Directorate of Information Analysis and Infrastructure Protection (IAIP), to be
a stand-alone office reporting directly to the Secretary.” He also indicated that “the
Information Analysis unit should be a DHS-wide analytic entity that is empowered
to coordinate activities and fuse information from all intelligence offices in DHS.”
Secretary Chertoff expressed his intent to designate the Assistant Secretary for
Information Analysis as the Chief Intelligence Officer, and “the renamed Office of
Intelligence and Analysis (IA) will provide intelligence information in support of the
Department and will disseminate information and intelligence to our State and local
partners.”28
Regarding the relationship of the DHS Chief Intelligence Officer and IA with
the larger intelligence community, Secretary Chertoff, testifying at a July 14 hearing


25 P.L. 108-458, Sec. 1021; 118 Stat. 3672.
26 H.Rept. 109-79, p. 103.
27 S.Rept. 109-83, pp. 83-84.
28 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, pp. 2-3.

of the Senate Committee on Homeland Security and Governmental Affairs, suggested
that they would become better participants in the intelligence community by having
more to contribute as a result of gathering and integrating intelligence from all of the
department’s components.29 He reiterated that comment at a July 25 hearing of the
House Committee on Homeland Security, saying:
From our standpoint, our chief intelligence officer I think is going to
have a couple of powerful tools in dealing with the rest of the
community. First of all, that person will be able to speak for all of the
intelligence components within DHS. And, second, that person is
going to be able to bring to the table something that I don’t think we
have fully brought to the table, which is our own intelligence30
collection capability.
At that same hearing, the Secretary also said the DHS Chief Intelligence Officer
would be one of the two officials at DHS who would be part of the intelligence
community, the other presumably coming from the U.S. Coast Guard. Asked if DHS
would have a presence at the NCTC, he stated “I most definitely anticipate and want
to have DHS play a role in NCTC,” and indicated that for this to happen is “really31
just a question of finding the space and handling the logistics” at the NCTC facility.
Operations. In his July 13, 2005, 2SR remarks, Secretary Chertoff indicated
that, with the elimination of the BTS Directorate and vesting the Federal Emergency
Management Agency (FEMA) with a more independent status within DHS, “seven
primary operational components will have a direct line to the Secretary”: the
Transportation Security Administration (TSA), Customs and Border Protection
Bureau (CBP), U.S. Secret Service (USSS), U.S. Citizenship and Immigration
Services (USCIS), Immigration and Customs Enforcement Bureau (ICE), FEMA, and
the U.S. Coast Guard (USCG). However, he continued — “to improve our ability
to coordinate and carry out operations — we will establish a new Director of
Operations Coordination,” who “will work with component leadership and other
federal partners to translate intelligence and policy into actions — and to ensure that
those actions are joint, well-coordinated and executed in a timely fashion.”32
Secretary Chertoff stated in his July 13, 2005, reorganization notification letter
to Congress his intention to establish administratively within DHS an Office of
Operations Coordination (OOC), headed by the Director of Operations Coordination,
who will report directly to the Secretary. He explained that, in the original design of
DHS, “the Directorate of Border and Transportation Security (BTS) was intended to


29 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” unedited transcript (Washington: July 14, 2005), p. 14.
30 Congressional Quarterly, “House Homeland Security Committee Holds Hearing on
Review of Department of Homeland Security Organization,” unedited transcript
(Washington: July 25, 2005), p. 35.
31 Ibid., pp. 13-14.
32 U.S. Department of Homeland Security, “Secretary Michael Chertoff, U.S. Department
of Homeland Security Second Stage Review Remarks,” p. 7.

perform much of the operational coordination role envisioned for” OOC, but noted
that “BTS has authority over only a portion of the Department’s major operational
components, requiring additional coordination at the Secretary’s level.” Creating
OOC “to facilitate the Secretary’s coordination role will eliminate an inefficient, two-
step process. Accordingly,” he continued, “I have asked Congress for legislation that
would eliminate the position of Under Secretary for Border and Transportation
S ecuri t y.”33
Preparedness. The fourth and final structural realignment area discussed by
Secretary Chertoff in his July 13, 2005, 2SR remarks concerned restructuring the
department regarding its preparedness responsibilities. Calling DHS an “all hazards”
department, he noted that this concept included “not only fighting the forces of
terrorism, but also fighting the forces of natural disasters.” The Secretary said he
intended “to consolidate the Department’s existing preparedness efforts — including
planning, training, exercising and funding — into a single directorate led by an Under
Secretary for Preparedness.” Under this arrangement, he explained, FEMA, standing
outside the new directorate, “will be a direct report to the Secretary — but it will now
focus on its historic and vital mission of response and recovery.” The new
directorate “will support FEMA with training resources and will continue to rely on
FEMA’s subject matter expertise and the expertise of our other components in34
promoting preparedness,” he said.
The Secretary also indicated that he intended to appoint a Chief Medical Officer,
who would be located within the new Preparedness Directorate. “This position,” he
said, “will be filled by an outstanding physician who will be my principal advisor on
medical preparedness and a high-level DHS representative to coordinate with our
partners at the Department of Health and Human Services, the Department of
Agriculture and state governments.” Secretary Chertoff had plans, as well, for
another position within the Preparedness Directorate. “To centralize the coordination
of the efforts to protect technological infrastructure,” he announced, “we will create
the new position of Assistant Secretary for Cyber and Telecommunications Security
within the Preparedness Directorate.”35
Elaborating in his July 13, 2005, reorganization notification letter to Congress,
the Secretary explained that the “Administration’s original vision for the Directorate
of Emergency Preparedness and Response (EP&R) stressed the need for
consolidating preparedness, response and recovery into a single directorate,” but, he
noted, DHS’s preparedness programs “are presently spread among three separate
components, complicating management of these functions.” Consequently, he wrote,
“I intend to separate preparedness resources from response and recovery and combine
them in the IAIP Directorate, which will be renamed the Directorate for
Preparedness.” This reorganization, in the Secretary’s view, would not require any


33 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, pp. 3-4.
34 U.S. Department of Homeland Security, “Secretary Michael Chertoff, U.S. Department
of Homeland Security Second Stage Review Remarks,” p. 7.
35 Ibid., pp. 7-8.

congressional action. Under this arrangement, separating preparedness from
response and recovery, portions of FEMA — the U.S. Fire Administration, “the
hazardous materials training and assistance program, the chemical stockpile
emergency preparedness program, the radiological emergency preparedness program
and the BioShield program” — would be transferred to the Preparedness
Di rect orat e. 36
Discussing the proposed Preparedness Directorate, the relationship between it
and FEMA, and the future of FEMA at a July 14 hearing of the Senate Committee
on Homeland Security and Governmental Affairs, Secretary Chertoff said:
... the idea here is not to decouple the skills of FEMA from preparedness. It is
to allow FEMA to pursue its core mission as a direct report to the secretary and
then look to the preparedness directorate to draw on FEMA’s skill set and the
other skill sets in equal measure, in order to make sure it’s covering the entire37
gamut of preparedness from prevention through response and recovery.
A few days later, at a July 25 hearing of the House Committee on Homeland
Security, the Secretary again turned to the new role envisioned for FEMA.
What the restructuring proposes to do is to take out of FEMA a couple of
elements that were really not related to its core mission, that were more generally
focused on the issue of preparedness in a way that I think was frankly more of a
distraction to FEMA than an enhancement to FEMA. ... [W]e want to make sure
that FEMA was, as an operational agency, capable of focusing on its core
mission, that it was a direct report to the secretary so that it gets the direct
attention that it needs. And we wanted to make sure the leadership of FEMA
was not torn between its need to focus on the FEMA role the additional, rather
more strategic, preparedness functions, which [I] think that we are now seeking38
to unify and put together in a coordinated fashion.
He also offered the following statement regarding the intent in creating the new
directorate: “What our Preparedness Directorate will do is it will bring to the table
all of these very critical functions which are part of preparedness efforts —
prevention, protection and response and recovery.” Reiterating, he said: “What I
want to do is make sure that when we do preparedness policymaking, everybody is
at the table.”39
Turning to the role of the proposed Chief Medical Officer. The Secretary said:


36 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, pp. 4-5.
37 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” pp. 21-22.
38 Congressional Quarterly, “House Homeland Security Committee Holds Hearing on
Review of Department of Homeland Security Organization,” p. 8.
39 Ibid., p. 21.

The idea with a chief medical officer is precisely to give us somebody who owns
the entirety of this system, of response with respect to health issues. That would
be prevention, protection and response and recovery, because in many cases,
particularly dealing with biological threats, response and recovery is a very, very
important element of our defense strategy. ... So he’s going to be someone who’s
acutely aware of the interface between first responders and the health recovery
system in the emergency type of environment ... someone who is going to apply
the science of medicine and other scientific disciplines to the reality of dealing40
with a threat or a hazard in an emergency type of situation.
Finally, the proposed Office of Cyber Security and Telecommunications
(OCST), headed by an Assistant Secretary, would have two principal areas of
responsibility: (1) the cyber security component “will be responsible for collecting,
analyzing and coordinating access to information related to potential cyber terrorist
threats and will coordinate Department-wide activities on cyber threats with cyber
infrastructure”; (2) the telecommunications component “will also support
telecommunications infrastructure to meet mission-critical national security and
emergency preparedness communications needs for Federal, State, local and tribal41
governments as well as private industry.” OCST is a somewhat more elaborate
version of a model recently proposed in the Department of Homeland Security
Authorization Act for Fiscal Year 2006 (H.R. 1817) to better address cyber security
threats and establishes a professionally attractive and authoritative leadership position42
for the entity.
Other Entities. In addition to the four principal areas of structural
realignment discussed in Secretary Chertoff’s 2SR remarks of July 13, 2005, some
other aspects of his planned reorganization of DHS have been revealed, but not
always with details. For instance, in his July 13, 2005, reorganization notification
letter to Congress, the Secretary indicated he was shifting the Federal Law
Enforcement Training Center from BTS “to be a free standing entity reporting
directly to the Deputy Secretary.” Another entity, the Federal Air Marshal Service,
“will be transferred from Immigration and Customs Enforcement to TSA effective
October 1, 2005,” the date Secretary Chertoff set for implementing his reorganization
of the department. To better provide “timely and complete responses to
Congressional reporting requirements and informational inquiries from Members of
Congress and state and local elected officials,” the Secretary planned to “merge the
Offices of Legislative Affairs and those intergovernmental coordination resources of
the State and Local Government Coordination and Preparedness Office” into a “new
Office of Legislative and Intergovernmental Affairs (OLIA) ... headed by an Assistant
Secretary who will report directly to the Secretary.” The Office of Security, which
initially reported to the Under Secretary for Management, but was then redirected in
the spring of 2003 to report to the Deputy Secretary, would be returned to its original


40 Ibid., p. 24.
41 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, p. 5.
42 U.S. Congress, House Committee on Homeland Security, Department of Homeland
Security Authorization Act for Fiscal Year 2006, report to accompany H.R. 1817, 109thst
Cong., 1 sess., H.Rept. 109-71 Part 1 (Washington: GPO, 2005), pp. 71-73.

reporting status “in order to integrate security concerns more effectively with
management functions across the Department.”43
In congressional testimony shortly after his 2SR remarks of July 13, Secretary
Chertoff offered some further comments on these and other new arrangements, as
well as on some other new entities, within DHS. Appearing before the Senate
Committee on Homeland Security and Governmental Affairs on July 14, he
commented on the proposed relocation of the Office of the National Capital Region
Coordination (ONCRC) to the Preparedness Directorate, with the result that
ONCRC, instead of reporting directly to the Secretary, would report through the
Under Secretary for Preparedness. Commenting that ONCRC’s “function of
preparedness for the Capital ... needs to be very closely linked with preparedness in
general,” the Secretary explained the relocation, saying:
... what this does is it enhancing [sic] the ability of the National Capital to
participate in our preparedness planning and including the biopreparedness
planning, using the perspective that he has, you know, drawn from the unique
challenges that you face in this particular city, given the fact that it’s the seat of
government.
So I actually don’t view it as diminishing the role of that office, but actually as
enhancing its ability to touch and influence many of the preparedness functions
that we need to use that will be of direct significance to protecting the Capital of44
the country.
Asked about a proposed Domestic Nuclear Detection Office (DNDO), the
Secretary indicated that the new entity would report directly to him, thereby giving
it “stature to attract people ... that would not just be DHS people, but would be senior
people from Department of Energy and other interested departments.” He said he
had spoken with the Secretary of Energy about creating DNDO, and proffered that
both of them were “very committed to making this work” and that “the president is
personally interested in this as well.”45
In testimony before the House Committee on Homeland Security on July 25,
Secretary Chertoff commented briefly on plans to relocate the Federal Protective
Service (FPS) and the Federal Air Marshal Service (FAMS). Concerning the first of
these, he said: “I think part of the consideration of putting FPS in ICE was that FPS
does have a law enforcement or police function, and ICE is a law enforcement
organization.” Regarding the latter, he indicated that “it was our judgment that


43 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, pp. 5-7.
44 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” p. 24.
45 Ibid., p. 33.

particularly because we were going to move FAMS out of ICE and back to TSA, that
would enable the leadership of ICE to focus a little bit more on FPS.”46
Rejected CBP-ICE Merger. A reorganization proposal which did not
materialize in Secretary Chertoff’s 2SR plans was the suggested merger of the
Bureau of Customs and Border Protection (CBP) and the Bureau of Immigration and
Customs Enforcement (ICE). Recommended in the same Heritage Special Report
of December 13, 2004, that championed an Under Secretary for Policy for DHS,47 the
proposal received some attention at a January 26, 2005, hearing of the Senate
Committee on Homeland Security and Governmental Affairs on the future of DHS,
but at least one expert witness went on record as opposed to the idea, and the acting
DHS Inspector General, who testified at the hearing, was asked by the chair to do a48
study on the issue and report back to the committee. The House Committee on
Homeland Security also considered the matter, but came to no conclusion and,
instead, included a provision in the Department of Homeland Security Authorization
Act for Fiscal Year 2006 (H.R. 1817) requiring the Secretary to review and evaluate
the current organizational structure of CBP and ICE and submit a report of findings
and recommendations to Congress within 30 days after the enactment of the49
legislation. At the time the committee reported the authorization bill, Secretary
Chertoff’s 2SR initiative had been underway for two months.
In his July 14 testimony before the Senate Committee on Homeland Security
and Governmental Affairs, Secretary Chertoff was asked about the CBP-ICE merger
proposal. Taking the matter “very seriously” and acknowledging that he “actually
met with the inspector general to get a sense, at least, of what he was finding” on the
issue, the Secretary said, “I asked myself: What are the problems we’re trying to cure
here, and is there a way to cure them in a less drastic approach?” In brief, he
concluded that the merger would have the result that the two entities “would simply
have deputy assistant secretaries instead of assistant secretaries.” Continuing, he
said:
What seemed to be important was to get them to operationally work together but
to do it with the other components as well, with Coast Guard, for example, and
with — even with infrastructure protection, and that’s where having an
operations and a planning and policy shop department-wide I think supplies the
answer.
When we sat down to talk about a border security strategy, what we needed to
do was to build a plan that was comprehensive, that took us from the beginning
of the process through the end, and that spanned, among other things, the role of
CBP, ICE and Coast Guard. Putting together a tool that allows us to do that —


46 Congressional Quarterly, “House Homeland Security Committee Holds Hearing on
Review of Department of Homeland Security Organization,” p. 31.
47 Carafano and Heyman, “DHS 2.0: Rethinking the Department of Homeland Security,”
Heritage Special Report SR-02, pp. 15-16.
48 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs,
Department of Homeland Security: The Road Ahead, pp. 39-43.
49 H.Rept. 109-71 Part 1, p. 78.

which is what we’ve recommended — I think will address the problems that have50
been identified.
The Secretary offered a very similar explanation at the July 25 hearing of the
House Committee on Homeland Security. Saying “we actually took a very close look
at this,” and again acknowledging he “was privy to some of the factual findings that
the inspector general made when we considered this,” Secretary Chertoff offered
“what our thinking was.”
First of all, part of our proposed restructuring involves having a common
department-wide policy and planning shop and operations shop, which gives us
not only the ability to unify operations and policy between CBP and ICE, but
across the department, including, for example, Coast Guard, which often
intersects with them as you get into maritime areas, and therefore should be part
of the same coordination function.
* * * * * * *
It seemed to me that you are dealing with functionally different issues when you
are dealing with CBP, which deals principally with inspection and with border
patrol agents, and on the other hand you have your detention and removal folks
and your investigators at ICE, and those are different functions.
* ** * * * *
So, given the upside of a merger, and considering the possible downside,
including the huge cost that’s involved any time you do a massive reorganization,
I think it was our judgment that the case had not been made that a merger would
cure the issues that have to be addressed. There is no question there are issues
of coordination and finance that have to be addressed, and we are addressing
them, but I think at this point I’m confident that what we’re doing will remedy51
the existing problems.
In mid-September, the Washington Times disclosed that a draft report, prepared
by the DHS Inspector General at the request of Senator Susan Collins, chair of the
Committee on Homeland Security and Governmental Affairs, recommended that
CBP and ICE be merged into a single entity. The proposal contradicts the 2SR
realignment plan of Secretary Chertoff, which calls for the two agencies two remain52


separate.
50 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” pp. 15-16.
51 Congressional Quarterly, “House Homeland Security Committee Holds Hearing on
Review of Department of Homeland Security Organization,” pp. 17-18.
52 Jerry Seper, “Uniting Immigration Agencies Sought,” Washington Times, Sept. 19, 2005,
p. A4.

Early Organizational Issues
Reorganization Authority. While the Secretary, in his July committee
testimony, expressed his confidence that his 2SR reforms would “remedy the existing
problems,” other interested parties had raised issues concerning his plans, not the
least of which concerned his means to achieve his reorganization ends. In concluding
remarks at the July 14 hearing of the Senate Committee on Homeland Security and
Governmental Affairs, Senator Susan Collins, the chair of the panel, made the
following comment to Secretary Chertoff:
... as I review your plan, you are intending to make some truly fundamental
changes to the department without requesting legislative authority to do so. Your
list of legislative changes is very narrow.
I think you’re pushing the boundaries on that. And I hope you will work with the
committee so that we can draft a more comprehensive reauthorization bill. I
think many of the changes you’re proposing really should be done by law and not53
just administratively. So, that’s an issue we’ll be pursuing with you.
The issue underlying the comment made by Senator Collins involved Secretary
Chertoff’s interpretation of his reorganization authority. His interpretation was
seemingly revealed in the text of a footnote in his July 13, 2005, reorganization
notification letter to Congress, which stated: “Section 872 of the Homeland Security
Act of 2002 provides broad reorganization authority and permits the Secretary to
alter or consolidate existing organizational units, to establish new organizational
units or to allocate or reallocate functions within the Department.”54 Senator Collins’
comment suggested that she did not regard the reorganization authority conveyed at
Section 872 to be broad in scope, or at least not as broad as the Secretary was
asserting. Moreover, the expressed agreement with her closing comments by Senator
Joseph Lieberman, the ranking minority member of the committee, appeared to imply55
that he, too, did not regard the Secretary’s reorganization authority to be broad.
Section 872 of the Homeland Security Act (HSA) provides that the “Secretary
may allocate or reallocate functions among the officers of the Department, and may
establish, consolidate, alter, or discontinue organizational units within the
Department, but only ... after the expiration of 60 days after providing notice of such
action to the appropriate congressional committees, which shall include an
explanation of the rationale for the action,” and subject to certain limitations
specified in the section. These limitations include no abolition of “any agency,
entity, organizational unit, program, or function established or required to be


53 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” p. 49.
54 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, p. 1 note (emphasis added).
55 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” p. 50.

maintained by the [Homeland Security] Act” or “by statute.”56 Noting that the term
“organizational units” is not defined in the act, a CRS legal analysis of the section is
instructive regarding its scope.
[I]n applying canons of statutory construction to the HSA, it appears Congress
intended an organizational unit to be something smaller than an agency or other
statutorily created entity. In the limitation provision of §872(b)(1), for example,
Congress placed the term organizational units after the terms agency and entity,
but before the terms program and function. This placement suggests Congress
may have intended an organizational unit to be smaller than an agency and entity
on the general assumption that things of a higher order are named at the
beginning of an enumeration and that Congress does not intend to be superfluous.
In §471(b) of the HSA, Congress again suggests that an organizational unit may
be a small administratively created structure. Section 471(b) authorizes the
Secretary (through the President’s Reorganization Plan) to reorganize the
functions or organizational units within the Bureau of Citizenship and
Immigration Services. Because the provision places an organizational unit within
the Bureau, it appears Congress intended the term to be something smaller than
a bureau.
The definition of the term organizational units, in essence, affects the
Secretary’s authority to reorganize DHS. Because §872(a) only allows the
Secretary to establish, consolidate, alter, or discontinue organizational units
within the Department, it might be argued that the Secretary is only allowed to
establish, consolidate, alter, or discontinue units smaller than an agency, entity,
or bureau. An office, advisory committee, or laboratory, for example, might
arguably qualify as something smaller than an agency, entity, or bureau.
Changes to structures other than organizational units would apparently need to
be categorized as a reallocation of functions among the officers of the
Department or be conducted pursuant to new legislative action to avoid an
unauthorized action. Nonetheless, because the term organizational units is not
defined in the HSA or discussed in any relevant legislative history, the scope of57
the term is not completely clear.
Increased Direct Reports. Secretary Chertoff contended that his58
reorganization of DHS would result in a “flattening” of the department. However,
his plan substitutes one hierarchical directorate, Policy, for another, BTS, and
transforms another directorate, IAIP, into one for Preparedness. Furthermore, his
restructuring results in some 27 lines of reporting to the Secretary/Deputy Secretary,
instead of the previous 22 lines, with seven of these new lines coming from operating
agencies. This new arrangement raises two issues which the minority members of
the House Committee on Homeland Security articulated in a July 2005 report.


56 116 Stat. 2243; 6 U.S.C. § 452 (emphasis added).
57 CRS Report RS21450, Homeland Security: Scope of the Secretary’s Reorganization
Authority, by Stephen R. Vina (emphasis in original).
58 Congressional Quarterly, “Senate Homeland Security and Governmental Affairs
Committee Holds Hearing on Review or [sic] Department of Homeland Security
Organization,” p. 38.

While reorganization of operational functions is generally a good idea, if the
Secretary’s office is not structured in a way that will channel the oversight of all
these agencies, a Secretary less able or influential than Secretary Chertoff may
become overwhelmed.
Additionally, such a “flatter” structure could lead to political staff in the
Secretary’s office having too much control over daily operations of law59
enforcement and screening agencies, such as ICE, CBP, and TSA.
Other Concerns. This report, which commended Secretary Chertoff for
undertaking 2SR, also reflected frustration with his failure to provide adequate
details regarding his proposals, with the result that aspects of the roles of the
Assistant Secretary for Cybersecurity and Telecommunications, the Chief Medical
Officer, and the Chief Intelligence Officer were unclear and raised important
questions.60 It also expressed concern about the Preparedness Directorate,
specifically that “the structure advocated by the Secretary may create harmful
competition between infrastructure protection, cybersecurity, and first-responder61
needs.” The failure to merge CBP and ICE, as recommended by the December
2004 Heritage Special Report, was regarded to be “a mistake.”62 Similarly, the
Secretary’s failure to seek strengthened investigative powers for the DHS Privacy
Officer, as well as a five-year term of office and authority to submit reports directly63
to Congress, was also viewed as “a mistake.” The report was critical of the
Secretary, as well, for ignoring Government Accountability Office (GAO) and DHS
Inspector General assessments supporting the elevation of “offices in the
Management Directorate, which includes the Chief Procurement Officer (CPO) and
the Chief Information Officer (CIO), and the Chief Financial Officer, to a level above
the other directorates,” and, thereby, strengthening their positions in the department’s64
hierarchy. Finally, the report noted that “Congress mandates that the Department
of Defense (DOD) submit a Quadrennial Defense Review (QDR) every four years to
focus on the strategic needs of the Pentagon for the next 20 years,” and lamented that


59 Rep. Bennie G. Thompson, et al. (minority members), House Committee on Homeland
Security, Protecting America Against Terrorists: The Case for a Comprehensive
Reorganization of the Department of Homeland Security (Washington: n.d.), p. 7.
60 Ibid., pp. 2-5.
61 Ibid., p. 5.
62 Ibid., p. 9.
63 Ibid., pp. 9-10.
64 Ibid., p. 10; see U.S. Department of Homeland Security, Office of the Inspector General,
Improvements Needed to DHS’ Information Technology Management Structure, OIG-04-29
(Washington: July 2004); U.S. Department of Homeland Security, Office of the Inspector
General, Major Management Challenges Facing the Department of Homeland Security,
OIG-05-06 (Washington: Dec. 2004); U.S. Government Accountability Office, Department
of Homeland Security: A Comprehensive and Sustained Approach Needed to Achieve
Management Integration, GAO Report GAO-05-139 (Washington: Mar. 2005); the
Department of Homeland Security Financial Accountability Act of 2004 effectively
modified the DHS CFO position so that this official reports directly to the Secretary, instead
of through the Under Secretary for Management, with the result that CFO appears to hold
co-equal status with, but not higher status than, the heads of the directorates (118 stat. 1275).

“Secretary Chertoff has not indicated he will put in place a long-term planning
system like a QDR.”65
Early Leadership Issues
Secretary Chertoff’s 2SR reorganization proposal also raised issues regarding
the composition of the department’s leadership. The proposal, as initially released,
provided for the creation or organizational relocation of a number of leadership
positions, but often did not specify the compensation level and appointment authority
for these positions. It was unclear whether or not the Secretary had sufficient
authority, without congressional action, to establish, and make appointments to, the
top DHS leadership positions his proposal envisioned.
Under the Constitution, Congress establishes departments and agencies, and, to
whatever degree it chooses, creates the offices and the internal organization of
agencies. It may, for example, lay out a highly specified organizational framework,
or it may delegate to the President or the agency head the creation of most positions
and distribution of most functions, responsibilities, and authority. Usually, Congress
establishes the top three or four levels of a department’s hierarchy in law. By
statutorily establishing leadership positions, Congress determines the shape of the
leadership hierarchy for the department as well as a system of accountability to
elected officials.
The Constitution also provides Congress with considerable discretion over
which officers of the United States will be appointed by the President with the advice
and consent of the Senate (PAS positions), and which may be appointed by the
President alone (PA positions), the courts, or agency heads.66 Congress has often
created departmental leadership positions as PAS positions; this approach has several
institutional advantages for Congress. For example, it often allows Senators to have
a role in the selection of the nominee and in determining the fitness of the selected
individual for the role to which he or she has been nominated. In addition,


65 Thompson, et al. (minority members), House Committee on Homeland Security,
Protecting America Against Terrorists: The Case for a Comprehensive Reorganization of
the Department of Homeland Security, pp. 12-13.
66 The appointment process for federal government leadership positions is guided by the
Constitution, which provides that “[the President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments”
(Article II, Sec. 2, cl. 2). In a 1976 opinion, the GAO Comptroller General presumably
reasoned that this provision indicates that all officers of the United States are to be PAS
positions unless Congress affirmatively delegates that authority (Comp. Gen. Dec. No. B-
183012, 56 Comp. Gen. 137). With regard to which positions would be considered
“Officers” under this clause, the Supreme Court has held that “any appointee exercising
significant authority pursuant to the laws of the United States is an ‘Officer of the United
States,’ and must, therefore, be appointed in the manner prescribed” above (Buckley v.
Valeo, 424 U.S. 1, 126 (1976)).

confirmation hearings provide Senators with an opportunity to conduct oversight
over agencies and programs, and to extract a pledge that the nominee will appear
before committees of Congress when summoned. This commitment may not be
necessary, under most circumstances, to obtain testimony. An argument could be
made that Congress has the authority to call most officers with operational duties,
regardless of appointment status, before its committees. As a practical matter,
however, the commitment obtained at the time of confirmation may make this
process easier for Congress. Absent such a commitment, an Assistant Secretary, for
example, may defer to an Under Secretary when requested to appear before a
congressional committee.
In some cases, Congress has elected to assign appointment authority to the
President alone. Most of the positions to which appointments are made in this way
are in the White House Office. These are generally positions in close proximity to
the President, whose incumbents are often privy to confidential policy discussions
conducted by leaders of agencies in the Executive Office of the President. By and
large, officials appointed in this manner act as advisers, rather than implementing the
law. Although PA positions are unusual outside of that context, the Homeland
Security Act created seven such positions in the new department.67 As a result,
Congress may have less influence regarding the kinds of individuals appointed to fill
these positions and the ways in which they address their responsibilities.
In other cases, Congress has assigned appointment authority to the Secretary.
This kind of appointment has been particularly common for lower-level officers, and
it gives the Secretary the greatest discretion. Although such an appointment is
usually made with White House consent, congressional involvement may be minimal
or nonexistent.
PAS Assistant Secretaries. The Homeland Security Act created up to 12
Assistant Secretary positions, with no specified functions, to which appointment was
to be made by the President with the advice and consent of the Senate (PAS
positions).68 In general, the act provided that the statutory Assistant Secretaries are69
compensated at Level IV of the Executive Schedule. From the time the department
was established to the end of June 2005, the President had submitted nominations to
Assistant Secretary positions with the following titles and organizational locations:


67 Those positions were Director of the United States Secret Service, Chief Information
Officer, Chief Human Capital Officer, Chief Financial Officer, Officer for Civil Rights and
Liberties, Assistant Secretary for Information Analysis, and Assistant Secretary for
Infrastructure Protection. (P.L. 107-296, §§ 103(e), 201(b), 702, 703, 704, and 705; 6 U.S.C.
§§ 113(d) and 121(b).) The Chief Financial Officer was later converted to a PAS position
(P.L. 108-330).
68 P.L. 107-296, § 103(a)(8); 6 U.S.C. § 113(a)(8). Generally, where Assistant Secretary
functions are not specified in statute, the President specifies functions or a title with each
nomination to such a position. For at least one department (State), Congress has mandated
that the President take this step (22 U.S.C. § 2651a(c)(3)).
69 P.L. 107-296, § 1702(a)(4); 5 U.S.C. § 5315.

!Assistant Secretary for Immigration and Customs Enforcement
(BTS);
!Assistant Secretary for the Transportation Security Administration
(BTS);
!Assistant Secretary for Plans, Programs, and Budgets (S&T); and
!Assistant Secretary for Border and Transportation Security Policy
and Planning (BTS).
Under Secretary Chertoff’s reorganization proposal, the Assistant Secretary for
Immigration and Customs Enforcement was to become a commissioner, compensated
at Level III of the Executive Schedule, and the office holder was to report directly to
the Secretary. Similarly, the Assistant Secretary for the Transportation Security
Administration was to become a director, compensated at Level III of the Executive
Schedule, and the office holder was to report directly to the Secretary. No change
was announced then with regard to the Assistant Secretary for Plans, Programs, and
Budgets. Secretary Chertoff indicated that the Border and Transportation Security
Policy and Planning Office was to become part of the new OPPIA.
The new OPPIA initially was to be headed by an Assistant Secretary appointed
through the advice and consent process — presumably one of the 12 available under
the Homeland Security Act. The President submitted a nomination to this position
on July 14, 2005, coincident with the rollout of the Secretary’s 2SR proposal.
Secretary Chertoff requested that Congress elevate this position to the Under
Secretary level.70 During the time the OPPIA would be headed by an Assistant
Secretary, this officer was to oversee the offices of several other Assistant
Secretaries. It is unusual, however, to have an Assistant Secretary report to another
Assistant Secretary.
The reorganization proposals also appeared to create several other Assistant
Secretary positions, including:
!Assistant Secretary for Cyber Security and Telecommunications;
!Assistant Secretary for Grants and Training;
!Assistant Secretary for International Affairs;
!Assistant Secretary for Private Sector; and
!Assistant Secretary for Strategic Plans.71
Secretary Chertoff’s reorganization proposal, as initially released, did not specify
whether these proposed positions were to be among the 12 statutory Assistant
Secretaries provided for in the Homeland Security Act. Alternatively, they might be
created administratively. It would be unusual, however, for a Secretary to create
administratively high-level positions with significant authority for implementing law.


70 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, p. 2.
71 U.S. Department of Homeland Security, “Department of Homeland Security Organization
Chart (proposed end state),” available at [http://www.dhs.gov/interweb/assetlibrary/
DHSOrgChart.htm] .

PA Assistant Secretaries. The Homeland Security Act also established two
additional Assistant Secretary positions to which appointment was to be made by the72
President alone. The creation of Assistant Secretary positions as PA, rather than
PAS, positions was a departure from prior practices in the other departments. The
President, in his signing statement, endorsed the view that these positions were
distinct from the positions discussed above, stating:
The text and structure of the Act make clear that these two presidentially
appointed Assistant Secretary positions were created in addition to the 12
unspecified Assistant Secretary positions, and the executive branch shall73
construe the relevant provisions accordingly.
The two officials, the Assistant Secretary for Information Analysis and Assistant
Secretary for Infrastructure Protection, were responsible for assisting the Under
Secretary for Information Analysis and Infrastructure Protection in the discharge of
his duties.
Under Secretary Chertoff’s proposal, the Assistant Secretary for Infrastructure
Protection was to report to the new Under Secretary for Preparedness.74 The
Secretary’s proposal, as initially released, did not indicate what, if any, changes
would be made to the authorities and responsibilities of this Assistant Secretary as
a result of this new reporting arrangement, or whether such changes could be made
under the Secretary’s existing reorganization authority.
Secretary Chertoff’s proposal was to elevate “the Information Analysis
resources ... to be a stand-alone office reporting directly to the Secretary.” The
“renamed Office of Intelligence and Analysis (IA) [was to] provide intelligence
information in support of the Department and [was to] disseminate information and
intelligence to our State and local partners.” The Secretary was to “designate the
Assistant Secretary for Information Analysis as the Chief Intelligence Officer.”75
Consequently, the proposed change was to alter the organizational location,
hierarchical level, responsibilities, and title of this office.
SES Assistant Secretaries. In addition to the Assistant Secretary positions
authorized by the Homeland Security Act, at least two others have been
administratively created within DHS as non-career Senior Executive Service (SES)
positions.76 SES positions are often created for program and other middle-level


72 P.L. 107-296 § 201(b); 6 U.S.C. § 121(b).
73 Weekly Compilation of Presidential Documents, vol. 38, Nov. 25, 2002, p. 2092.
74 U.S. Department of Homeland Security, “Homeland Security Secretary Michael Chertoff
Announces Six-Point Agenda for Department of Homeland Security,” press release,
available at [http://www.dhs.gov/dhspublic/display?content=4598].
75 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, p. 3.
76 U.S. Congress, House Committee on Government Reform, United States Government
Policy and Supporting Positions, 108th Cong., 2nd sess., committee print (Washington: GPO,
(continued...)

managers. These positions, Assistant Secretary for Public Affairs and Assistant
Secretary for Legislative Affairs, have been filled through appointment by the
Secretary of Homeland Security.
As previously noted, under Secretary Chertoff’s reorganization proposal, a new
Office of Legislative and Intergovernmental Affairs was to “assume those
responsibilities presently charged to the Office of Legislative Affairs” and include the
“intergovernmental coordination resources of the State and Local Government
Coordination and Preparedness Office.” The new office was to be headed by an
Assistant Secretary for Congressional and Intergovernmental Affairs.
Other Proposed Positions. Secretary Chertoff’s reorganization proposal
was to create several other leadership positions. These included the Director of
Operations Coordination, the Director of the Federal Emergency Management77
Agency (FEMA), the head of the Domestic Nuclear Detection Office, and the Chief
Medical Officer. The first three of these positions were to report directly to the
Secretary, and the Chief Medical Officer was to report to the Under Secretary for
Preparedness.
The proposal, as initially released, did not request that Congress establish these
positions in statute, and the appointment authority and the compensation level were
not specified. The President might elect to create one or more of these positions
using existing statutory Assistant Secretary slots, in which case the affected
position(s) would be appointed by the President with the advice and consent of the
Senate and compensated at Level IV of the Executive Schedule. Alternatively, the
Secretary might create the positions administratively as SES positions. As previously
noted, however, it would be unusual for a Secretary to create administratively high-
level positions with significant authority for implementing law.
Congress and Prescribing the DHS Leadership Hierarchy. Secretary
Chertoff’s 2SR reorganization proposal, as initially released, prompted many
questions regarding the organization of the department leadership. Among other
things, some 27 officials who were to report directly to the Secretary were to be


76 (...continued)

2004), pp. 74-75.


77 Before it became part of DHS, FEMA was headed by a director appointed by the President
with the advice and consent of the Senate and compensated at Level II of the Executive
Schedule (5 U.S.C. App. Reorganization Plan No. 3 of 1978, § 102). This position was not
explicitly transferred to the new department by the Homeland Security Act, however, and
the act provided that except “as otherwise provided in this Act, whenever all the functions
vested by law in any agency have been transferred pursuant to this Act, each position and
office the incumbent of which was authorized to receive compensation at the rates
prescribed for an office or position at level II, III, IV, or V, of the Executive Schedule, shall
terminate” (P.L. 107-296 § 1513; 6 U.S.C. 553). It could be argued, therefore, that the
FEMA director position was to be terminated at that time. FEMA information sometimes
refers to Michael Brown, Under Secretary for Emergencies, Preparedness, and Response,
as the Director of FEMA (e.g., [http://www.fema.gov/news/newsrelease.fema?id=17223]).
It is unclear whether this usage of the title of “director” indicates that DHS has determined
that the original position continued to exist after the transition.

compensated at different levels and appointed in different ways, and this situation
could lead to some confusion concerning the organization’s hierarchy. For example,
would an Assistant Secretary for Intelligence and Analysis be on equal organizational
footing with an Under Secretary for Management?
Responding to a July 22, 2005, letter from President George W. Bush proposing
FY2006 budget amendments reconfiguring DHS budget accounts to support
Secretary Chertoff’s 2SR reorganization plan for the department,78 conferees on the
DHS appropriations bill, “[f]or the most part,” accepted these amendments and,
thereby, tacitly approved much of the Secretary’s reorganization plan for the
department. 79 The following were among the changes so endorsed:
!Abolishing the Under Secretary for Border and Transportation
Security (BTS) and merging BTS functions into other DHS
components; 80
!Dividing the Information Analysis and Infrastructure Protection
Directorate (IAIP) into Analysis and Operations (IA in the
Secretary’s earlier discussions?) and a Preparedness Directorate, and
transferring all state and local grants and associated activities to this
new directorate;81
!Transferring the Federal Air Marshal Service (FAMS) from
Immigration and Customs Enforcement (ICE) to the Transportation
Security Administration (TSA);82
!Expanding the functions and responsibilities of the Office of Policy
(a modified version of OPPIA, which may subsequently be
statutorily transformed into a directorate headed by an Under
Secretary) by transferring the Special Assistant to the Secretary-
Private Sector and the Office of Immigration Statistics to it;83


78 U.S. White House Office, letter to the Speaker of the House of Representatives,
Washington, DC, July 22, 2005, accompanied by U.S. Office of Management and Budget,thst
“Estimate No. 10, 109 Congress, 1 Session,” transmitted by Joshua B. Bolton, Director,
Washington, DC, July 21, 2005.
79 U.S. Congress, Committee of conference, Making Appropriations for the Department of
Homeland Security for the Fiscal Year Ending September 30, 2006, and for Other Purposes,thst
report to accompany H.R. 2360, 109 Cong., 1 sess. H.Rept. 109-241 (Washington: GPO,

2005), p. 30.


80 Ibid.
81 Ibid., pp. 30, 40, 41, 63.
82 Ibid., p. 30, 55.
83 Ibid., pp. 30, 31.

!Transferring the Office of Security to the Management Directorate;84
!Transferring the functions and resources of the Office of State and
Local Government Coordination and Preparedness (OSLGCP) to the
Office of Legislative Affairs to create the new Office of Legislative
and Intergovernmental Affairs (OLIA);85
!Reconstituting portions of the Information Analysis and
Infrastructure Protection (IAIP) Directorate as a new Preparedness
Directorate, headed by an Under Secretary, and transferring the
Office of National Capital Region Coordination (ONCRC), the U.S.
Fire Administration and Training, infrastructure protection and
information security functions, and elements of OSLGCP to it, and
establishing the Office of Chief Medical Officer within it, as well,86
and
!Conducting a Quadrennial Homeland Security Review similar to the
Pentagon’s QDR and submitting the results to the congressional
appropriations and homeland security committees.87
The House agreed to the conference report on October 6 on a 347-70 vote; the
Senate completed action on the report the following day, clearing the DHS
appropriation bill (H.R. 2360) for the President’s signature on October 18, 2005.88
Later Organizational Issues
Despite major controversy regarding the FEMA response and recovery effort
following Hurricane Katrina, attempts to investigate and evaluate that effort, and
uncertainty concerning how much of the 2SR reorganization could be unilaterally
implemented without congressional action, Secretary Chertoff, with little public
notice, proceeded with the October 1, 2005, implementation of his 2SR plan. While
some aspects of the early organizational and leadership issues remained, new
concerns also have arisen.
Effecting Reorganization. Some confusion surrounds the manner in which
the 2SR reorganization was effectuated. In his July 13, 2005, letter to Congress
providing “notification of the reallocation of functions and the establishment,
consolidation and alteration of organizational units within the Department of
Homeland Security,” Secretary Chertoff indicated he was restructuring DHS pursuant
to Section 872 of the Homeland Security Act, and set an October 1, 2005,


84 Ibid., pp. 32, 37.
85 Ibid., p. 32.
86 Ibid., pp. 32, 63, 70.
87 Ibid., p. 35.
88 P.L. 109-90; 119 Stat. 2064.

implementation date.89 Some have questioned how much of his 2SR plan the
Secretary could realize using this authority. A DHS October 18 press release
concerning the department’s $2.4 billion appropriations increase for FY2006,
however, contended that the “FY2006 Homeland Security Appropriations Act adopts
many of the organization changes proposed in the 2SR process.”90 This statement is
disingenuous not only for what it purports — that the allocation of funds for an entity
serves to charter or establish that component — but also for ignoring the explanations
of the appropriators. The conference committee report on the DHS appropriations
provided the following comment.
Since March 2005, the Department of Homeland Security (DHS) has been
conducting an internal review of its policies, operations and organizational
structure, known as the “Second Stage Review.” On July 13, 2005, the
Department announced a major reorganization that reflects the findings of this
review. A budget amendment was submitted on July 21, 2005, requesting the
appropriations structure be modified for fiscal year 2006 to reflect this
reorganization proposal. For the most part, the conferees have complied with
these requests. The conferees concur with the Department’s decision to abolish
the Office of the Under Secretary for Border and Transportation Security (BTS);
BTS functions have been merged into other offices and component agencies
throughout the Department. The conferees have agreed to split the Directorate
of Information Analysis and Infrastructure Protection into two new components
— Analysis and Operations and the Preparedness Directorate — and move all
State and local grants and associated activities to the new Preparedness
Directorate. The conferees concur with the Secretary’s recommendation to
transfer the Federal Air Marshals to the Transportation Security administration.
Finally, the conferees have included and expanded the roles and responsibilities91
of the Office of Policy.
Later in their report, when considering the Office of the Under Secretary for
Border and Transportation Security, the conferees agreed “to provide no funding for
this appropriation, as proposed in the Secretary’s organizational restructuring plan
submitted on July 13, 2005, which abolished the Office of the Under Secretary for
Border and Transportation Security (BTS).”92 The Secretary, however, does not
appear to have any authority to abolish BTS. Established by Section 401 of the
Homeland Security Act, BTS would seemingly require a statutory pronouncement to
be eliminated.
FEMA Status. Shortly after he began implementing his 2SR plan, Secretary
Chertoff announced changes regarding some of FEMA’s operations — contracting
and procurement arrangements, communications capabilities, ability to handle
disaster-assistance calls and disperse aid, and staffing levels — which were seen to


89 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the
Honorable Christopher Cox, p. 2.
90 U.S. Department of Homeland Security,” DHS Receives $2.4 Billion Increase for 2006
Appropriations,” press release, Washington, DC (Oct. 18, 2005), p. 2, available at
[http://www.dhs.gov/dhspublic/display?t heme =43&content=4894&print=true].
91 H.Rept. 109-241, p. 30 (emphasis added).
92 Ibid., p. 41.

be less than adequate in the aftermath of the agency’s Hurricane Katrina response.
He remained committed, however, to his plan to make FEMA a stand-alone entity
within DHS focusing on response and recovery efforts.93 FEMA would work with,
but not be part of, the new Preparedness Directorate. In the aftermath of Hurricane
Katrina, legislation has been introduced to remove FEMA from DHS and restore its
status as an independent agency (S. 1615, H.R. 3656, H.R. 3659, H.R. 3685, H.R.

3816); and another proposal would counter some aspects of the 2SR reorganization,


including divesting FEMA of its planning and preparedness responsibilities (H.R.
4009). In early November, Secretary Chertoff indicated he planned to restructure
FEMA to operate efficiently like a modern distribution company with the ability to
track and locate supplies for emergency response.94
CPB-ICE Merger? The mid-November release of the DHS inspector
general’s (IG’s) report assessing and supporting the merger of CPB and ICE into a
single agency brought into the open a heated dispute within the department over the
advisability of the merger, the accuracy and analytical rigor of the report, and the
Secretary’s organizational authority. The IG’s assessment of the merger had been
requested by Senator Susan Collins, chair of the Committee on Homeland Security95
and Governmental Affairs, during a January 2005 hearing. Secretary Chertoff and
other senior DHS officials have resisted the recommendation, but there is support for96
the merger within Congress.
Chief Intelligence Officer. Appearing before a subcommittee of the House
Committee on Homeland Security on October 19, 2005, Charles Allen, the newly
named DHS Chief Intelligence Officer and a veteran CIA official, indicated that he
had “the Secretary’s mandate to integrate all of the Department’s intelligence
capabilities, not just those in the Office of Intelligence and Analysis,” which he
heads. This means, he explained, “the Secretary is counting on me to marshal all the
intelligence and information in Homeland Security’s component agencies and deliver


93 Chris Strohm, “Homeland Security Chief Plans to Retool FEMA,” GOVEXEC.com Daily
Briefing, Oct. 21, 2005, available at [http://www.govexec.com/story_page.cfm?articleid
=32612&printerfriendlyV er=1&] .
94 Greta Wodele, “DHS Chief See FEMA Operating Like a Successful Business,”
GOVEXEC.com Daily Briefing, Nov. 4, 2005, available at [http://www.govexec.com/
dailyfed/1105/110405cdpm2.htm] .
95 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs,
Department of Homeland Security: The Road Ahead, p. 43.
96 U.S. Department of Homeland Security, Office of the Inspector General, Office of
Inspections and Special Reviews, An Assessment off the Proposal to Merge Customs and
Border Protection with Immigration and Customs Enforcement, OIG-06-04 (Washington:
Nov. 2005); Stephen Losey, “Pressure Builds to Merge ‘Dysfunctional’ ICE with CPB,”
Federal Times, Oct. 31, 2005, p. 13; Chris Strohm, “Homeland Security, IG Battle Over
Proposed Merger,” GOVEXEC.com Daily Briefing, Nov. 11, 2005, available at
[http://www.govexec.com/story_page.cfm?articleid=32798&printerfriendlyVers=1&]; Jerry
Seper, “Senate Puts Chertoff on Notice,” Washington Times, Nov. 14, 2005, p. A4; Chris
Strohm, “Homeland Security, IG Dispute Impact of Merging Agencies,” GOVEXEC.com
Daily Briefing, Nov. 15, 2005, available at [http://www.govexec.com/story_page.cfm?
articleid=32817&printerfriendlyV ers=1&].

it to him in a way he can use to make timely, risk-based decisions about how to
deploy the Department’s human and material resources.” In furtherance of this
objective, Allen said he would be implementing an intelligence integration plan,
which his staff had prepared in conjunction with the Secretary’s 2SR effort, and
planned “to establish a Homeland Security Intelligence Council as my principal
forum for discussing intelligence issues of Department-wide significance, developing
a Departmental intelligence strategic plan, and driving intelligence component
integration.” The council, which he would chair, “will consist of key intelligence
officials from the various DHS operating components,” he proffered. Allen also told
subcommittee members that “DHS intelligence must become fully involved in the
Intelligence Community and the National Intelligence Program,” which, in his view,
meant “being a valued contributor to the overall intelligence effort and a trusted
recipient of national intelligence information from other agencies.” Indeed, he
viewed this undertaking — “securing our place in the Intelligence Community” —
as not only a priority, but also a challenge.97
Chief Medical Officer. Appearing before a subcommittee of the House
Committee on Homeland Security on October 27, 2005, Jeffrey W. Runge, the newly
named DHS Chief Medical Officer (CMO), a physician, and recent head of the
National Highway Traffic Safety Administration, indicated his office was developing
a strategic plan to assist with identifying and “filling gaps in the Department’s
medical readiness.” It was his view that “the DHS Medical Office needs to be a data-
driven, science-based organization that brings cutting-edge science, technology, and
intelligence to bear on the Department’s policy-making.” He anticipated the
appointment of a Deputy Chief Medical Officer and three Associate Chief Medical
Officers in his organization.98
Also testifying at the same subcommittee hearing was Jeffrey A. Lowell, former
senior medical affairs advisor to the Secretary of Homeland Security and current
professor of surgery and pediatrics at the Washington University School of Medicine
in Saint Louis, MO. Discussing his review of the medical and health assets,
activities, resources, and capabilities of the new DHS, he said he “found that the
Department of Homeland Security lacked a clearly-defined and unified medical
capability to support its mission of preventing, protecting, responding to, and
recovering from major terrorist attacks or natural disasters.” While applauding
Secretary Chertoff’s decision to establish a CMO within DHS, he recommended
creating an Office of Medical Readiness, headed by a CMO with more clearly
defined duties and responsibilities, which he specified in his testimony. He
concluded, saying that “DHS must re-evaluate and refine the medical component of
its mission; design, develop, and realign medical response capabilities within the


97 U.S. Department of Homeland Security, prepared statement of Charles Allen for House
Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment, Washington, DC (Oct. 19, 2005), pp. 2-4, 7, available at
[http://hsc.house.gov] under “Hearings and Markups-Witness Testimony.”
98 U.S. Department of Homeland Security, prepared statement of Jeffrey W. Runge for
House Committee on Homeland Security, Subcommittee on Management, Integration, and
Oversight, Washington, DC (Oct. 27, 2005), p. 2, available at [http://hsc.house.gov] under
“Hearings and Markups-Witness Testimony.”

Department, under the direction of its Chief Medical officer, and collaborate with
HHS and other Federal partners to ensure the seamless integration of medical
preparedness and response capabilities at the Federal, Regional, State, and local
levels.”99
Another witness, David Heyman, senior fellow and director of the Homeland
Security Program of the Center for Strategic and International Studies, commented
on the existing need “for the government to clarify authorities and national leadership
roles for biodefense by establishing and empowering a lead executive.” In this
regard, he posed the question of “what specific role will the CMO play.” It was his
own belief, he said, that, “if you consider the breadth of responsibilities, however,
that his role should be more one of a Chief Health Officer than a medical officer, as
he must help guide the Department in far more than medical advice, to include for
example navigating health care systems, understanding disease surveillance, or
advising on waste disposal, sanitation and decontamination.” He then outlined “four
specific areas where clear leadership is needed today.” Thus, he appeared to indicate
that the role of the CMO extended beyond providing medical advice, and should
impart leadership (1) in providing sound scientific, medical, and public health advice;
(2) in developing greater situational awareness of both biological threats and health
care preparedness or vulnerabilities; (3) in integrating federal, state, local, and private
sector elements in the development and implementation of a national strategy to
protect against biological events; and (4) in establishing and leading outreach efforts
to educate citizens on preparing for, and protecting their health during, catastrophic
health emergencies.100
Later Leadership Developments and Issues
As the 2SR initiative has been rolled out, a number of leadership changes have
been implemented through the confirmation process and administration actions.
Questions remain, however, regarding the statutory basis for, and congressional role
in appointments to, new leadership positions.
By the end of the first session of the 109th Congress, nominees had been
confirmed for two new positions at DHS. George W. Foresman was confirmed to be
the Under Secretary for Preparedness on December 17, 2005. The President’s
nominee to be the first Assistant Secretary for Policy, Stewart A. Baker, was


99 Prepared statement of Jeffrey A. Lowell, Professor of Surgery and Pediatrics, Washington
University School of Medicine, for House Committee on Homeland Security, Subcommittee
on Management, Integration, and Oversight, Washington, DC (Oct. 27, 2005), pp. 2-3, 5,
available at [http://hsc.house.gov] under “Hearings and Markups-Witness Testimony.”
100 Prepared statement of David Heyman, Senior Fellow and Director of the Homeland
Security Program, Center for Strategic and International Studies, for House Committee on
Homeland Security, Subcommittee on Management, Integration, and Oversight,
Washington, DC (Oct. 27, 2005), pp. 5, 7-10, available at [http://hsc.house.gov] under
“Hearings and Markups-Witness Testimony.”

confirmed on October 7, 2005. Legislation to establish a similar position at the under
secretary level had been introduced, but not enacted.101
As proposed by Secretary Chertoff, the position of Assistant Secretary for
Information Analysis had been moved from the former Directorate for Information
Analysis and Infrastructure Protection to the Office of Intelligence and Analysis, a
stand alone office reporting directly to the Secretary. The position, which was
established by the Homeland Security Act,102 is now referred to by DHS as the Chief
Intelligence Officer. Charles E. Allen was appointed to the position on September
18, 2005.103 Inasmuch as this position has been moved to an organizational location
directly below the Secretary, Congress might elect to clarify the responsibilities and
authority associated with the position. Under the provisions of the act, appointments
to the position are to be made by the President alone, and the incumbent is to “assist
the Under Secretary for Information Analysis and Infrastructure Protection in
discharging the responsibilities of the Under Secretary under” the act. However, this
under secretary no longer exists, as such, and its successor position, the Under
Secretary for Preparedness, does not appear to have authority over the Assistant
Secretary for Information Analysis (Chief Intelligence Officer). The change in the
hierarchical location of this assistant secretary might also lead Congress to reassess
the process for making appointments to the position to determine whether or not
advice and consent should be required in the future.
Of the five newly created assistant secretary positions, only one had been
identified as an advice and consent position by the end of the session. The Assistant
Secretary for Grants and Training was to be the same individual as the Executive
Director of the Office of State and Local Government Coordination and
Preparedness.104 The nomination of Tracy A. Henke to the executive director
position, which was already a statutory PAS position, was pending as the Senate
adjourned, and it was to be held over to the second session.
Of the four remaining newly created assistant secretary positions, three were
being established as non-career SES positions. The individuals selected to fill these
positions had previously been with DHS in other capacities. Alfonso Martinez-
Fonts, Jr., who had been serving as Special Assistant for the Private Sector, was
appointed to be Assistant Secretary for Private Sector on October 2, 2005. On the
same day, Cresencio S. Arcos, who had been serving as Director of the Office of
International Affairs, was appointed as Assistant Secretary for International Affairs.
Robert Stephan, who had been appointed by the President to serve as Assistant
Secretary for Infrastructure Protection, was to be appointed by the Secretary to be
Assistant Secretary for Strategic Plans in January 2006. There appeared to be no
plans to fill the former position after it was vacated by Stephan. With regard to the


101 See, for example, S. 1866 and H.R. 4009.
102 P.L. 107-296, § 201(b); 116 Stat. 2145. Codified at 6 U.S.C.121.
103 Telephone conversation with DHS representative, Dec. 22, 2005.
104 Telephone conversation with DHS representative, Dec. 22, 2005. The executive director
position was established by P.L. 107-296, § 430(b), 116 Stat. 2191. Codified at 6 U.S.C.

238.



status of the last of the newly created assistant secretary positions — the Assistant
Secretary for Cyber Security and Telecommunications — no appointment had been
made by the end of the first session. News accounts suggested that the appointment
had been held pending the completion of the FY2006 DHS appropriations process
and might be forthcoming thereafter.105
Statutory provisions and administrative actions during the evolution of the DHS,
including those stemming from the 2SR initiative, have effectively created three
categories of assistant secretaries: those presidentially appointed with advice and
consent of the Senate; those presidentially appointed without advice and consent; and
those appointed by the Secretary, also without the input of the Senate. Although not
without precedent, this broad and varied usage of the assistant secretary title is
unusual across other departments. It is not clear whether or not assistant secretaries
from each of these three categories will be given the same level of policymaking
authority and responsibility. As a result of the different appointment processes,
however, the three types of assistant secretaries may have differing stature within the
department and within the government at large. In addition, those who are subject
to Senate confirmation are likely to undergo greater scrutiny in the selection process
and to be more accountable to Congress during their tenure. As a condition of Senate
confirmation, most nominees make a commitment “to respond to requests to appear
and testify before any duly constituted committee of the Senate.” Appointees who
are not subject to Senate confirmation are under no such obligation, although they
may nonetheless do so.
Of the four other proposed positions, two were filled by permanent
appointments and one continued to be held by an acting official. The Chief Medical
Officer position, newly created as a non-career SES position, was filled on
September 4, 2005, when Secretary Chertoff appointed Jeffrey W. Runge.106 This
office, which is located in the newly created Preparedness Directorate, was to be
staffed with four new Associate Chief Medical Officers.107 On September 4, 2005,
the Director of the Nuclear Detection Office, also established as a non-career SES
position, was filled by Vayl Oxford, who had previously served in other capacities
in the Science and Technology Directorate at DHS. R. David Paulison continued to
serve as the Acting Director of FEMA. The status of the last of the four positions —
the Director of Operations Coordination — could not be determined.
As the post-2SR leadership structure of DHS becomes clear, Congress may
elect, in its oversight role, to evaluate the distribution of authority and accountability,
as well as the leadership selection and appointment process. Based on that


105 Greta Wodele, “Homeland Security Mulls Cyber Czar Nomination,” GOVEXEC.com
Daily Briefing, Oct. 21, 2005, available at [http://www.govexec.com/story_page.cfm?
articleid=32619].
106 Telephone conversation with DHS representative, Dec. 13, 2005.
107 U.S. Department of Homeland Security, prepared statement of Jeffrey W. Runge for the
House Committee on Homeland Security, Subcommittee on Management, Integration and
Oversight, Washington, DC (Oct. 27, 2005), available at [http://hsc.house.gov] under
“Hearings and Markups-Witness Testimony.

evaluation, it may consider codifying existing arrangements or alternative
arrangements.
Legislation
H.R. 4009, the Department of Homeland Security Reform Act of 2005,
introduced October 6, 2005, by Representative Bennie G. Thompson for himself and

12 cosponsors, and referred to the Committees on Homeland Security, Intelligence,


and Transportation and Infrastructure. The proposal would implement some aspects
of Secretary Chertoff’s plan for reorganizing DHS as a result of his 2SR initiative,
but also contains provisions that are contrary to that plan. Set out below is a
summary of the principal provisions of the bill.
!Requires the Under Secretary for Policy to conduct a comprehensive
examination of DHS to be known as a Quadrennial Homeland
Security Review, and to determine human resource capabilities and
requirements, organizational structure, innovation and improvement
plans, intelligence and information and information analysis
capabilities and resources, infrastructure capabilities and resources,
and budget and technology resources, capabilities, and requirements;
!Establishes an Office of Intelligence and Analysis headed by a Chief
Intelligence Officer, with specified responsibilities and appointed by
the President, with the existing Assistant Secretary for Information
Analysis being transformed into the Chief Intelligence Officer
position;
!Abolishes the Information Analysis and Infrastructure Preparedness
(IAIP) Directorate;
!Directs the Secretary of Homeland Security to establish an intra-
agency task force on the protection of unclassified, but security-
relevant information provided by the private sector, to be composed
of the Chief Intelligence Officer, general counsel, Special Assistant
to the Secretary-Private Sector, officer for civil liberties and civil
rights, Privacy Officer, and other appropriate DHS personnel, and to
determine (1) what kind of private sector information is security-
relevant, but unclassified; (2) how such information should be
controlled; and (3) the significance of such information for national
security; and to propose a policy to encourage the sharing of
unclassified, but security-relevant, information between the private
sector and the government;
!Redesignates the Emergency Preparedness and Response (EP&R)
Directorate as the Preparedness and Response Directorate and the
Under Secretary for Emergency Preparedness and Response as the
Under Secretary for Preparedness and Response;
!Establishes an Assistant Secretary for Preparedness, appointed by
the President, to perform the functions of the Office for State and



local Government Preparedness and Coordination (OSLGPC) and
other specified responsibilities;
!Assigns the Under Secretary for Preparedness and Response primary
responsibility for oversight and coordination of federal programs for,
and relationships with, state, local, and regional authorities in the
National Capital Region;
!Establishes within the Preparedness and Response Directorate a
Military Liaison with specified responsibilities and appointed by the
President;
!Abolishes the Office of State and local Government Coordination
and Preparedness (OSLGCP), the Office for Domestic Preparedness,
and the Office of National Capital Region Coordination;
!Establishes a Director of the Federal Emergency Management
Agency (FEMA), who shall be an Assistant Secretary within the
Preparedness and Response Directorate, and appointed by the
President, with Senate confirmation, from among individuals having
extensive background in emergency or disaster-related management
to serve a term of five years; establishes a Deputy Director of
FEMA, who shall be appointed by the Director and shall be a career
federal service employee;
!Establishes a Chief Medical Officer within the Preparedness and
Response Directorate, with specified responsibilities, who shall be
an Assistant Secretary;
!Provides a sense of Congress that the Bureau of Customs and Border
Protection (CBP) and Bureau of Immigration and Customs
Enforcement (ICE) should be merged into a single operational unit
within DHS;
!Strengthens the investigative authority of the Privacy Officer
primarily by the provisions of subpoena power; prescribes for the
Privacy Officer a term of five years; and provides for direct reports
to Congress by the Privacy Officer concerning the performance of
his or her responsibilities;
!Abolishes the Under Secretary for Management and transfers the
functions of that position to the Secretary;
!Prescribes that the Chief Financial Officer, Chief Information
Officer, and Chief Human Capital Officer shall exercise joint
authority, with the component agency heads of DHS, over the
financial, information, and human capital officers, respectively, in
the component agencies and entities of DHS;



!Establishes a Business Transformation Officer within DHS, who
shall report to the Secretary or another officer as directed by the
Secretary, to develop an overarching management integration
strategy with recommendations and performance goals for DHS;
!Allows DHS employees, DHS contractor or subcontractor
employees, or other employees of companies working in homeland
security areas to file a complaint with the Department of Labor
(DOL) in the event of retaliation against such an employee for
reporting a national or homeland security concern to his or her
employer, the Government Accountability Office (GAO), a
government agency, or Congress; if DOL does not act on the
complaint within six months from its filing, the employee can bring
a case in federal district court for relief; requires judgement in favor
of the employee if the government prevents the case from being
heard due to an assertion of the “state secrets” privilege; and makes
retaliation against whistle blowers a crime punishable by ten years
in prison;
!Establishes an Office of Tribal Security within DHS, headed by a
Director, with specified responsibilities, who shall report to the
Secretary;
!Establishes in the Preparedness and Response Directorate a National
Cybersecurity Office, headed by an Assistant Secretary for
Cybersecurity , and Telecommunications, with specified
responsibilities and appointed by the President;
!Establishes in the Preparedness and Response Directorate an
Assistant Secretary for Physical Infrastructure Security, with
specified responsibilities and appointed by the President;
!Establishes an Under Secretary for Policy, appointed by the
President with Senate confirmation; and
!Establishes within DHS a program for the secure handling of
ammonium nitrate.
S. 1866, the Homeland Security Policy Act of 2005, introduced October 7, 2005,
by Senator Susan Collins for herself and Senator John Warner, and referred to the
Committee on Homeland Security and Governmental Affairs. The legislation
amends the Homeland Security Act to establish an Under Secretary for Policy in the
Department of Homeland Security.



Appendix 1:
2SR Initiative Chronology
March 2, 2005 -Secretary of Homeland Security-designate Michael Chertoff, in
testimony before the Subcommittee on Homeland Security of
the House Committee on Appropriations, announced that he was
initiating a comprehensive review of the organization,
operations, and policies of the Department of Homeland
Security (DHS).
July 13, 2005 -Secretary of Homeland Security Michael Chertoff announced a
six-point agenda for DHS, which resulted from a Second Stage
Review or 2SR that he had initiated, and was designed to ensure
that the department’s policies, operations, and structures are best
aligned to address potential threats to the nation, both today and
in the immediate future.
July 14, 2005 -Secretary of Homeland Security Chertoff testified before the
House Committee on Homeland Security regarding his reform
agenda for DHS resulting from 2SR.
-Secretary Chertoff testified before the Senate Committee on
Homeland Security and Governmental Affairs regarding his
reform agenda for DHS resulting from 2SR.
July 19, 2005 -Secretary Chertoff testified before the Senate Committee on
Commerce, Science, and Transportation regarding his reform
agenda for DHS resulting from 2SR.
July 22, 2005 -President George W. Bush transmitted to Congress FY2006
budget amendments reconfiguring DHS budget accounts to
support Secretary Chertoff’s organization restructuring plan for
the department.
July 25, 2005 -Secretary of Homeland Security Chertoff testified further before
the House Committee on Homeland Security regarding his
reform agenda for DHS resulting from 2SR.
Sept. 29, 2005 -The conference committee report on DHS appropriations for
FY2006, as produced in the Congressional Record, indicated
that, “[f]or the most part,” the conferees had accepted the July

22 budget amendments proposed by President Bush and,


thereby, tacitly approved much of Secretary Chertoff’s 2SR
reorganization plan for DHS.
Oct. 1, 2005 -Secretary Chertoff began the implementation of his 2SR
reorganization of DHS at the beginning of the new fiscal year.



Oct. 6, 2005 -Representative Bennie G. Thompson introduced H.R. 4009, the
Department of Homeland Security Reform Act of 2005,
implementing some aspects of Secretary Chertoff’s plan for
reorganizing DHS as a result of his 2SR initiative; the bill was
referred to the Committees on Homeland Security, Intelligence,
and Transportation and Infrastructure.
Oct. 7, 2005 -Senator Susan Collins introduced S. 1866, the Homeland
Security Policy Act of 2005, amending the Homeland Security
Act to establish an Under Secretary for Policy in the Department
of Homeland Security; the bill was referred to the Committee on
Homeland Security and Governmental Affairs.



Appendix 2:
Glossary
2SR Second Stage Review
BTSBorder and Transportation Security Directorate
CBPCustoms and Border Protection Bureau
CIACentral Intelligence Agency
CIOChief Information Officer/Chief Intelligence Officer
CPOChief Procurement Officer
DHSDepartment of Homeland Security
DNDODomestic Nuclear Detection Office
DODDepartment of Defense
EP&REmergency Preparedness and Response Directorate
FAMSFederal Air Marshal Service
FBIFederal Bureau of Investigation
FEMAFederal Emergency Management Agency
FPSFederal Protective Service
GAOGovernment Accountability Office
HSAHomeland Security Act of 2002
IAOffice of Intelligence and Analysis
IAIPInformation Analysis and Infrastructure Protection Directorate
ICEImmigration and Customs Enforcement Bureau
NCTCNational Counterterrorism Center
OCSTOffice of Cyber Security and Telecommunications
OLIAOffice of Legislative and Intergovernmental Affairs
ONCRCOffice of the National Capital Region Coordination
OOCOffice of Operations Coordination
OPPIAOffice of Policy, Planning, and International Affairs
PAPresidentially appointed position



PASPresidentially appointed, Senate confirmed position
QDRQuadrennial Defense Review
SESSenior Executive Service
TSATransportation Security Administration
TSCTerrorist Screening Center
TTICTerrorist Threat Integration Center
USCGUnited States Coast Guard
USCISUnited States Citizenship and Immigration Services
USSSUnited States Secret Service