The New Bureaucracy
 

Ok, so I keep getting asked to speculate about our Homeland Security.  Nobody seems to have a clue about what it does or will do, except lately we've heard it will coordinate efforts between the CIA and the FBI (and everybody else).  Besides that, the most official matter of policy to come out of the office seems to have been a color coded system to gauge national security at any given time.  We're on 'yellow' alert, we are told.  I admit I find it curious that we've not been told what to do if, for instance, we were to elevate to 'red' alert.  But somehow I don't think it really matters.

I have only one problem with the new department of Homeland Security: its creation.  Since we know a little bit now of what the government knew then, why don't we just discuss this for a second.

It has been admitted by the FBI that the 9/11 attack was not the work of well trained individuals, and that in fact their plan was fairly rudimentary, and sloppily executed.  These were the same people the FBI and the CIA had been largely successfully keeping at bay since 1991, when they first declared war on us.  And they were using the same methods.  The evidence was there but nobody saw it in time.  Long and short, they got lucky.

Ok, so the report is that the FBI and the CIA didn't adequately share information, and that there is a general shortage of analysts looking through field information.  But instead of adding analysts and department coordinators to the existing bureaucracies, the Bush Administration created a new bureaucracy to house these added members, plus a whole lot of extra administrators to run this new entity.  Why?

Unfortunately, there is really only one reason to do so.

All actions taken by the Executive and Legislative branches are open to Judicial review (with only one exception: commerce is determined solely by Congress).  This review is, however, not pre-emptive in nature.  Courts will not take cases unless they are argued, and these cases have to be on particular actions taken, not anticipated.  In these initial cases, which take many years to be brought, the question is not whether a law was violated.  The question is: what would constitute a violation of the law or the Constitution.

The courts have handed down many decisions about the Constitutional and criminal limitations and boundaries in the statutes creating both the FBI and the CIA and in their implementation.  Violation of these clear rules would constitute a criminal act, with fairly serious repercussions.  This new department of Homeland Security has none of these restrictions.  For a period of time, unfortunately many years at least, it will be allowed to operate virtually unhindered by the constraints of the Constitution and the common law, since it will not have been determined what exactly is unconstitutional or criminal about its construction or operation.

Oh, come on; this has happened so many times before it's almost too easy.  I don't need to speculate about what exactly Homeland Security is supposed to do.  I simply know that it has been created to circumvent, for as long as possible, the rules regarding the Constitution and the law which have previously been developed by the Judicial branch.  And since this end-run is not necessary to fix the problems with the FBI and the CIA (which is, as they have all admitted, all that would have been necessary to stop the 9/11 attack), it takes little brains to figure out that whatever the new bureaucracy's tasks will be, they will be unconstitutional or illegal.

When you read this in the papers in 10 years or so, try to act surprised.
 

June 23, 2002