Homeland Security will drastically
reshape American government

by Daniel Henninger

Wall Street Journal, Friday, November 22, 2002

The Department of Homeland Security, approved by a Senate vote of 90-9 this week, is probably a much bigger event in the life of this country than most people realize. It has the potential to change in fundamental ways the structure of our politics, our law and the way we live our daily lives.

Most of the discussion so far has concerned civil liberties and balancing those freedoms against public safety (also known as getting killed). But the implications of Homeland Security push well beyond the civil-liberties debate, touching and perhaps reordering many of the political and legal relationships between the national government, states and localities.

Though these implications haven't been widely discussed, no one in government is hiding the magnitude of the department's creation, which President Bush likely will make law by month's end. Transmitting his proposal to Congress last June, Mr. Bush said--and it is repeated in every news story--"I propose the most extensive reorganization of the Federal Government since the 1940s." That means every other corner of the country's political system is going to be touched as well by this "reorganization."

Mr. Bush likened his idea to Harry Truman's decision to collect the armed services into a Department of Defense. The purpose then was "to meet a very visible enemy in the Cold War." But this is different. The Soviet Union, no matter how many thermonuclear devices it held, was not al Qaeda; its leaders, located in Moscow, weren't inclined to an act that in turn would destroy their own population. But the political threat, like the bombs themselves, were real, and a 40-year policy of deterrence was the right response at that time.

The new threat from Islamic terrorists is not primarily the familiar suicide bombers, no matter how horrific the events of September 11. There is no way the government would undertake a reorganization on the scale of the Homeland Security Department if the threat were containable to conventional explosions. The threat that justifies what this department will do to America's political organization is biologically derived weapons. Or a radiological bomb. The ideological willingness of Islamic radicals to disengage themselves from civilized life and massively murder innocent civilians, abetted by rogue states, makes the threat creditable. The magnitude of death and disruption likely to be caused by such weapons makes allowing the threat to occur, by inaction, unthinkable. Thus we are getting the Department of Homeland Security, or DHS.

(Not that everyone believes the threat is real, as was reflected in Congress's actually fighting over whether to exempt manufacturers of antiterror vaccines from tort litigation.)

I think there is a perception in the public mind that what Homeland Security means is that if something really bad happens, America's resources are so vast that "they"--the government or whoever is in charge--will know how to impose all this capacity to put the fire out. That's what we always do with earthquakes or floods and what we did when the World Trade towers came down.

But natural disasters, and September 11 in lower Manhattan or at the Pentagon, have been local disasters. Because this new biological (or radiological) threat is geographically massive, we are being led toward greatly enlarging national control of domestic security and other functions traditionally controlled at the state and local level. This imperative has the potential to significantly tip the federal system--in matters of politics, police functions and the law--toward Washington to an unprecedented degree.

No doubt this deserves a moment's thought on the merits. But no thinking is possible until people recognize what is going on. Most of the serious analysis I've seen on the subject has been confined to abstruse publications like Public Administration Review, whose readers--public managers--will be expected to make all this work.

The money first. If the national government is going to foot most of the bills, as the already overspent states and cities want in areas such as safeguarding critical infrastructure, the feds will insist on shaping the new system in most of its significant details.

There is the matter of jurisdictional control. Bear in mind that behind everything the public sector does lies a complex network of statutory authorization and law. Should one of these large-scale attacks on the civilian population become real, a cascade of hard decisions would present themselves involving such matters as quarantine, compulsory inoculations, forced population movements, property seizures, the status of infrastructure, hospital personnel, media, the deployment of police and military forces. Should looters be shot?

Who makes those calls? Which ones? Private-sector managers would also be asked to respond. Who should they listen to--the mayor, governor, the commander of NORCOM, the new Northern Command? And of course even within the federal system, issues of jurisdictional authority already rage.

In peacetime, the American legal system has struggled to achieve a balance between federal and state assertions of authority. When securing the homeland creates legal tensions, whose interpretation of the constitutional balance should prevail? If the argument for the Commerce Clause is that national commerce couldn't function subject to many laws, the same might be said for the imperative of achieving security across state borders.

The Department of Homeland Security, incidentally, is the sophisticated solution. The crude one would be to wait for the hit, then impose martial law, for as long as necessary. Amid a biological attack, no one would question such measures. We'd muddle through. The resulting political system would be a secondary disaster.

The president says Homeland Security presages a long war to suppress weapons of mass destruction. The nature of the threat may well force a broad federalization, but we should strive to minimize it, for once taken it will of course become permanent. The very best way to achieve that balance is obvious: Eliminate those people who want to and say they are trying to kill us.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.

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