Congress Should Look Into DHS’s ‘Homeland Threat Assessment 2024’

Is its anodyne explanation for the Biden border surge driven by politics or incompetence?

By Andrew R. Arthur on October 17, 2023

I recently analyzed the potential terrorist threats posed by the millions of migrants who have crossed the Southwest border illegally since Joe Biden became president, particularly in light of the recent savagery caused in Israel by Hamas terrorists who crossed illegally from Gaza. l specifically referenced passages from DHS’s recently released “Homeland Threat Assessment 2024” that focused on border vulnerabilities terrorists could (and likely will) exploit. The report was prepared by the DHS Office of Intelligence and Analysis (I&A), headed by Undersecretary Kenneth L. Wainstein. Congress may want to call him in to discuss those vulnerabilities, and also to ask him questions about I&A’s take on the reasons for the recent border surge — and one particularly questionable piece of artwork therein.

Intelligence, September 11th, I&A, and the “Homeland Security Act”. I&A is likely not as familiar to most as other DHS agencies like ICE and CBP, but its role, at least as originally envisioned, is every bit as crucial to homeland security.

That’s because as much as anything, September 11th was a massive intelligence failure. As the RAND Corporation has explained:

The Cold War methodology of intelligence involved the gathering and keeping of "secrets" and was organized in a "stovepipe" manner according to the government source from which it originated. There were a limited number of sources, such as the National Security Agency (NSA) or the National Imagery and Mapping Agency (NIMA). Intelligence analysis was centralized, but not monopolized, by the CIA.

Agency “stovepiping” of intelligence might have made sense when we were in a Cold War against one opponent, but it became an impediment when the United States was facing a wide range of adversaries, some state-supported and others decidedly not.

The problem, as the 9/11 Commission noted in its final report, is that: “It is hard to ‘break down stovepipes’ when there are so many stoves that are legally and politically entitled to have cast-iron pipes of their own.” A wide range of agencies needed actionable intelligence pre-9/11, but it wasn’t easily accessible — assuming those agencies who needed it knew it existed at all.

Enter Congress and the 2002 “Homeland Security Act” (HSA), which created DHS out of an cluster of various agencies in different departments. So critical was intelligence to the envisioned success of the project that the second title in the act (directly after the creation of the secretary’s office in Title I) was “Information Analysis and Infrastructure Protection”, pp. 11 to 28 in a 187-page bill.

The idea was that “information analysis” would protect homeland “infrastructure”, and so the first section of Title II created an “Under Secretary for Homeland Security for Information Analysis and Infrastructure Protection” who was to be assisted by an “Assistant Secretary for Information Analysis”.

Don’t go looking for that assistant secretary on the current DHS organization chart, however, because in the “Implementing Recommendations of the 9/11 Commission Act of 2007”, that position was raised to the under-secretary level as the head of I&A, and made a critical part of the federal government’s “intelligence community” under 50 U.S.C. §3041, right up there with the director of the NSA.

Under Secretary Kenneth L. Wainstein. The current Under Secretary of Homeland Security for Intelligence and Analysis is Kenneth L. Wainstein, and with due respect to DHS Secretary Alejandro Mayorkas, he probably has the most impressive resume in the department.

Before taking the job, Wainstein was a partner in a D.C. law firm; taught national security law for a dozen years; was a longtime federal prosecutor in the two most prestigious U.S. attorney’s offices (the Southern District of New York and the District of Columbia — in the latter as U.S. attorney); acted as general counsel to the FBI; and served as the first assistant attorney general for national security at DOJ, under the George W. Bush administration.

Like me, he received his B.A. from the University of Virginia, so he started out strong — likely the key to his success. It does make you wonder why he wanted the I&A gig, however.

“Traditional Drivers of Migration to the United States Remain Unchanged”. All of that expertise, coupled with Wainstein’s nonpartisan resume, make his office’s assessment of the reasons for the Biden border surge all the more confusing:

Record numbers of migrants traveling from a growing number of countries have been encountered at our borders this fiscal year, with some monthly decreases largely attributed to migrants exploring new legal pathways or the expressed fear of penalties for irregularly crossing following the lifting of the Title 42 Public Health Order. We expect continued high numbers of migrant encounters over the next year because traditional drivers of migration to the United States remain unchanged and frustration with waiting for legal migration pathways may grow. [Emphasis added.]

I will concede that confusion about how the Biden administration’s border policies would change post-Title 42, coupled with the opportunity to take advantage of the (unlawful) “new legal pathways” that the White House was offering to buy off would-be illegal entrants, drove down illegal entries (briefly) in May and June.

Turning to the highlighted portion of the excerpt, however, I&A: (1) fails to list those “traditional drivers of migration” that will “remain unchanged” (or any reason why they would remain unchanged); and (2) presents the claim that illegal migration is driven, at least in part, by migrants’ “frustration with waiting for legal migration pathways”, particularly when there’s no evidence showing that to be true.

Those “legal migration pathways” are no narrower than they were in prior years in which illegal entries were significantly lower, and so blaming them for the current surge is a flawed post hoc rationalization.

And lest you think I am being picayune in my criticism of the inexactitude of the description of those unchanged “traditional drivers of migration”, consider the following, also from that report:

The most lethal attack this year occurred in May in Allen, Texas, where a now-deceased attacker killed eight people at a shopping mall. The attacker was fixated on mass violence and held views consistent with racially or ethnically motivated violent extremist (RMVE) and involuntary celibate violent extremist ideologies, judging from his writings and online activities.

I will confess that I am no expert on what motivates people to engage in senseless acts of violence, and consequently I have no opinion on whether I&A’s assessment of that killer’s motivations are correct or not. But it’s plain that I&A did a deep dive into the motivations of that actor.

Contrast that assessment, however, with the office’s scant and utterly conclusory explanation for why, as I&A explains earlier in that report, “record encounters of migrants” are “arriving from a growing number of countries” in a way that “have complicated border and immigration security” and created a vulnerability “[t]errorists and criminal actors may exploit”.

As a congressional staffer, I participated in the drafting of the HSA. Responding to domestic acts of criminal violence was not exactly what we had in mind in creating DHS, but to the degree that such acts have distinct and identifiable sources (such as “RMVE” and “involuntary celibate violent extremist ideologies”) that the department can respond to and defuse, I have no issue with it doing so.

Preventing foreign terrorists from carrying out attacks on the homeland, however, was well within DHS’s original portfolio, and in fact is the primary reason the department exists to begin with.

In fact, Border Patrol’s mission statement begins: “The priority mission of the Border Patrol is preventing terrorists and terrorist[] weapons, including weapons of mass destruction, from entering the United States.” (Emphasis added.)

As noted, in several places, the I&A report makes clear that the migrant surge at the border has created real opportunities that foreign terrorists and terrorist organizations could seek to exploit.

And yet (for a third time) the only explanations in the Homeland Security Threat Assessment 2024 for why that surge is happening now are “traditional drivers of migration” and foreign nationals’ frustration with being able to enter legally. Respectfully, that’s like saying 9/11 happened because people fly on planes.

Why There Is a Border Surge Now. Those terse explanations are especially confusing because we know exactly why millions of migrants have crossed the Southwest border since Joe Biden became president, and it was laid out in a March 8 opinion by U.S. district court Judge T. Kent Wetherell II in Florida v. U.S.:

There were undoubtedly geopolitical and other factors that contributed to the surge of aliens at the Southwest Border, but Defendants’ [Biden’s DHS] position that the crisis at the border is not largely of their own making because of their more lenient detention policies is divorced from reality and belied by the evidence. Indeed, the more persuasive evidence establishes that Defendants effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course — assuming, of course, that the aliens do not simply abscond before even being placed in removal proceedings, as many thousands have done. [Emphasis added.]

The “geopolitical and other factors” that Judge Wetherell alluded to are likely the same factors that I&A (obliquely) references, but they are not — as the judge explained — the reason for the surge. Biden’s release policies are. Which could mean two things.

First, that I&A and its under secretary with the impressive nonpartisan resume are so driven — or constrained — by politics that they cannot admit the obvious about that border surge that the office makes clear poses a terrorist vulnerability. That’s bad.

Second, however, is that an office so critical to homeland security is also so incompetent that it has no real idea what’s happening at the border. By any standard, that’s worse. Regardless, it’s incumbent on Congress to figure out what’s happening at I&A before our homeland security can be undermined even more.

The Artwork on p. 12. Page 12 in the Homeland Threat Assessment 2024 is a picture of a Border Patrol vehicle on a road at what appears to be the Southwest border. Such artwork is not uncommon in federal government reports, and this picture (logically) precedes the section of the assessment on “Border and Immigration Security”, which as both the 9/11 Commission Report and the HSA made clear is a key component of homeland security.

Actually, I can verify that the scene is at the Southwest border and can tell you almost exactly where it was taken: in Coronado National Monument in Cochise County, Ariz., heading west along the border road toward Coronado Peak and the Montezuma Pass overlook. I know that because I have been there three times in the past 14 months, most recently with a congressional delegation in August.

Compare that picture (left) with one that I myself took there in September 2022 (right).

See the difference? The one in the Threat Assessment doesn’t have the border fence panels sitting stacked up and unused on the side of the road, nor does it include the switchback road running up the mountain that CBP started to build under Trump.

Those fence panels are sitting there now because President Biden “paused” construction of the Border Wall System on his first day in office, and when he did so, construction on the switchback road was also halted. The summer monsoon rains in the area quickly washed the unfinished road out (costing taxpayers millions), making it more of an impediment to security than an improvement.

Those rusting fence panels, that washed-out road, and the Biden “pause” itself have also contributed to the border surge that I&A warns poses a terrorist danger to the United States. That’s because they send a signal to the smugglers and cartels operating directly south of where both pictures were taken that the administration is not serious about border security, and that the border is, consequently, “open”.

I have no reason to believe that I&A intended to mislead anybody when they included that picture: They simply found artwork that looked like the border and used it. The difference between that depiction and the facts on the ground, however, likely says more about the current state of border security than the threat assessment itself.

Time Is of the Essence. It’s critical for the administration to secure the border against the terrorist and drug threats identified in I&A’s Homeland Threat Assessment 2024 — but it’s unlikely to do so. Given that, Congress must call Under Secretary Wainstein up to the Hill for a chat about what that report says — and what it doesn’t. Time is of the essence for DHS to act on border security — which is one of the main reasons DHS exists to begin with.