For the past 40 months under the Biden administration, much of my professional time has been spent explaining the border — what’s happening, why it’s happening, and what will happen next. I can move on now, because if you want to know why the border is in the shape it is, just watch the disastrous testimony of Secret Service Director Kim Cheatle at a hearing last Monday before the House Oversight Committee on “Oversight of the U.S. Secret Service and the Attempted Assassination of President Donald J. Trump”. If Cheatle’s boss, DHS Secretary Alejandro Mayorkas, has repeatedly refused to accept blame for — let alone be honest about — the disaster at the Southwest border, why should she be forthcoming with Congress about what happened on July 13 in Butler, Pa.?
The Homeland Security Act of 2002. When we were congressional staffers, my colleague George Fishman and I were among the primary drafters of the Homeland Security Act of 2002 (HSA), the legislation that created DHS.
The component agencies of the new department were largely drawn from preexisting agencies in other departments, though immigration was an outlier.
As I have explained in the past, the patent failures of the Immigration and Naturalization Service (INS) — then an agency within the Justice Department — to prevent 19 alien terrorists from carrying out the deadliest terrorist attack on U.S. soil provided the spark that led to the immolation of the old “national-security” apparatus and the creation of a new department focused on “homeland security”.
Consequently, while other agencies were transferred wholesale into the new DHS (like the U.S. Coast Guard, which started in the Treasury Department before going to the Department of Transportation in 1967, and the Secret Service, then in the Treasury Department), the old INS was broken up, its responsibilities divided between an enforcement agency and an adjudicatory one.
The adjudicatory agency became USCIS (sections 451 to 461), while Border Patrol and legacy INS enforcement and detention functions became the “Bureau of Border Security” (“BBS”, in section 442).
You won’t find any BBS t-shirts or hats at Washington, D.C., memorabilia shops, however, because it only ever existed on paper.
The George W. Bush administration took the HSA and promptly separated the Border Patrol and port inspections programs from the BBS, joining them to the border, coastal, and port functions of the U.S. Customs Service to create CBP, while the INS interior enforcement and detention functions were melded with Customs’ interior enforcement duties to form ICE.
That was never Congress’s intent in the HSA, given that (in section 411 of the act) it moved Customs intact directly to the new DHS — after separating out its revenue functions, which were retained by the Treasury Department (sections 412 to 419).
“Mission Creep” and “Stove-piping”. As a critical aside, this Bush administrative reconfiguration was all the more confusing given two key issues that led to the creation of BBS and DHS itself: “mission creep” and “stovepiping”.
Mission creep refers to the assumption of new and often contradictory duties in any bureaucratic body, and it was identified as a critical failing of the old INS enforcement and adjudications structure. The latter gave immigration benefits, while the former took them away, creating a dissonant mission.
Given that, adding all Customs duties to the critical immigration-enforcement functions has set up a culture clash that’s festered under Biden, as “Immigration and Customs Enforcement” agents actively eschew the “immigration enforcement” part.
Stove-piping, in turn, refers to the collection and retention of critical intelligence within administrative departments and agencies. You may think of the U.S. government as one monolithic entity, but in practice three-letter national-security and law-enforcement agencies generally jealously guard their intelligence.
This was a significant issue in the aftermath of September 11th. As the 9/11 Commission noted in its final report: “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 the agencies who needed it knew it existed at all.
ICE and CBP may have a close relationship, but there are still impediments to information-sharing between the two agencies requiring “Memoranda of Understanding” and various other ad hoc agreements. Simply put, stove-piping of enforcement intelligence is baked into the ICE/CBP cake.
The (Likely Apocryphal) Wisdom of Robespierre. When I was studying French history, my professor quoted Maximilien Robespierre to underscore the unmitigated violence of the revolutionary-era “Reign of Terror”: “My most fervent wish is that all of Paris had but one neck.”
That’s likely an apocryphal quote, as I can’t find reference to it anywhere. When the Jacobin leader was at the height of his power, though, he likely would have eagerly adopted it as his person credo: Guillotining “enemies of the state” was his main method of control, and Robespierre saw potential enemies worthy of dispatch everywhere.
Inadvertently, Congress’s largely reactive creation of DHS set up a homeland security structure with one metaphorical “neck”, the secretary who oversees all of the department’s key activities.
The DHS secretary now oversees, and more importantly “leads”, many of our key security agencies: ICE; CBP; the Coast Guard; the Transportation Security Agency; the Federal Protective Service; FEMA; and, of course, the U.S. Secret Service.
Ideally, the DHS secretary would have impeccable credentials, irreproachable character, and wide popular and bipartisan support to carry out the department’s critical missions in a nonpartisan, transparent, and accountable manner.
The (Impeached) DHS Secretary, Alejandro Mayorkas. Which brings me to the seventh (confirmed) and current DHS Secretary, Alejandro Mayorkas.
He was a federal prosecutor, attorney in private practice, and deputy DHS secretary, but unlike, say, Tom Homan, lacks any real law-enforcement credentials to speak of. He’s never been an agent, or even a cop for that matter, and consequently his enforcement experience is largely secondhand.
Not that any of his predecessors ever cuffed a “perp”, but the first secretary, Tom Ridge, was an infantry staff sergeant before serving as Pennsylvania governor for six years; Janet Napolitano (No. 3) was a two-term governor of a border state (Arizona); and John Kelly (No. 4) rose through the ranks of the Marine Corps to become a four-star general and head of the U.S. Southern Command.
For what it’s worth, the second secretary, Michael Chertoff, left the Third Circuit U.S. Court of Appeals to take the job (as a favor to President Bush) and Jeh Johnson (Mayorkas’s old boss and the fourth secretary) had been the general counsel of the Department of Defense. Both men had and maintained stellar reputations, regardless of whether you liked their policies or not.
Mayorkas’s resume was roughly equivalent to that of his immediate (confirmed) predecessor, Kirstjen Nielsen, a former White House deputy chief of staff under the Bush administration and special assistant to the president on the Homeland Security Council (among other jobs).
Which is not to say that Mayorkas or Nielsen could not have succeeded in the role. Nielsen admirably guided DHS through an unprecedented (up to that point) “border emergency” in 2019, as hundreds of thousands of adults travelling with children in “family units” poured over the Southwest border, overwhelming agents and threatening security.
She recognized she had a problem, and publicly admitted as much, and faithfully implemented policies to address it (most notably the “Migrant Protection Protocols” of “MPP”, better known as “Remain in Mexico”).
Mayorkas, on the other hand, triggered a border disaster that dwarfed anything Nielsen dealt with by reversing Trump’s (and Nielsen’s) effective border policies (most notably MPP) and — in a break from all six of his predecessors — ditching migrant deterrence as a border policy in favor of allowing every alien who could make it to the United States to apply for asylum (nearly all of them out of DHS custody).
And instead of defending his (objectively feckless) border policies, Mayorkas repeatedly told Congress he had “operational control” of the Southwest border and refused to admit that the situation there was a “crisis”, preferring the term “challenge” instead.
For his border failures and repeated dissembling, the House of Representatives impeached Mayorkas in February. He only avoided a blistering trial in the Senate when Majority Leader Chuck Schumer effectively gutted the constitutional impeachment power to avoid a public-relations “challenge”.
At that point, you’d have assumed the secretary would read the writing on the wall, realize that he had lost any trust GOP House leadership ever had in him, and opted to “spend more time with the family” in lieu of continuing to head the department.
“Blunders and Failures”. That, of course, didn’t happen. Mayorkas remains DHS secretary, which brings me to this week's House Oversight hearing captioned “Oversight of the U.S. Secret Service and the Attempted Assassination of President Donald J. Trump”.
In my last stint on Capitol Hill, I was staff director for the House Oversight Committee’s National Security Subcommittee as we undertook a massive investigation of the agency’s then-failings.
I quickly learned Secret Service oversight is a bipartisan issue. Members on both sides of the aisle expect the agency to perform its protection duties expertly (if not flawlessly), and as importantly, they demand Secret Service leadership to meet the highest standards of competence and transparency.
Director Cheatle neither seemed competent nor offered transparency during her testimony. Nine days after the attempted assassination of the GOP’s presidential candidate, she displayed only a tenuous grasp of even the basic facts concerning what transpired on July 13.
Not surprisingly, as the Washington Post reported:
House Oversight Chairman James Comer (R-Ky.) and ranking Democrat Jamie Raskin (Md.) were among the Congress members who urged Cheatle to resign during the first congressional hearing since the attack on Trump at a campaign rally in Butler, Pa.
“Today, you failed to provide answers to basic questions regarding that stunning operational failure and to reassure the American people that the Secret Service has learned its lessons and begun to correct its systemic blunders and failures,” the lawmakers wrote in a letter published after the hearing.
“Where the Head Goes, So Goes the Body”. An aphorism that likely finds its source in the letter of St. Paul to the Colossians states: “Where the head goes, so goes the body”. A more earthy variation argues that “a fish rots from the head down”.
Not surprisingly, both are popular in the business sector to demonstrate how effective, competent, and responsible leadership is crucial to the success of any organization. If the leader is headed in the wrong direction, or worse, is failing, the whole endeavor is doomed.
Perhaps Cheatle’s performance before the committee was a shock to outlets (like the Post) that have largely ignored (and at times attempted to dismiss) the disaster the current administration has created at the Southwest border, but it wasn’t a surprise to me.
Cheatle’s boss, Alejandro Mayorkas, never accepted any accountability for the migrant surge he and the administration he represents have overseen, so why should she explain and accept blame for what happened in Butler?
Cheatle’s boss, Alejandro Mayorkas, has never conceded even the most blatantly apparent facts about the decline in border security at the Southwest border, so why should she concede anything about her agency’s failure to provide adequate personal security at that Trump rally?
Cheatle’s boss, Alejandro Mayorkas, has never revealed the number of illegal migrants his DHS has released into the United States in violation of congressional mandates, even though he knows that figure down to the last digit. Why would she tell Congress how many shell casings the FBI found on the roof of the building from which the shooter opened fire — a fact she, too, admittedly knows.
“For Better or Worse”. For better or worse, Congress assigned responsibility for nearly every federal agency with a homeland-security mission — including the Secret Service and CBP — to one individual, the DHS secretary. And for better or worse, President Biden named Alejandro Mayorkas to that position.
Secretary Mayorkas repeatedly tells Congress he bears no responsibility for the national-security disaster at the Southwest border that happened on his watch and that his policies triggered. Was it any surprise his Secret Service director followed his lead in refusing to concede her agency’s “blunders and failures”?
To her credit, Director Cheatle resigned the day after that hearing. Don’t expect her boss to go so easily; if he hasn’t gotten the hint yet, he likely never will.