Organizing for Homeland Security: The Homeland Security Council Reconsidered

Organizing for Homeland Security: The Homeland Security Council Reconsidered

Order Code RS22840
Updated November 26, 2008
Organizing for Homeland Security: The
Homeland Security Council Reconsidered
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Summary
In the immediate aftermath of the terrorist attacks of September 11, 2001, President
George W. Bush established the Office of Homeland Security and the Homeland
Security Council (HSC). In his June 2002 proposal for a Department of Homeland
Security, President Bush appeared to anticipate the continued operation of both of these
entities. However, the Homeland Security Act of 2002, which mandated the new
department, statutorily rechartered the HSC as an agency within the Executive Office
of the President (EOP). Thereafter, the HSC disappeared from the public record, and
its status today remains uncertain. Recently, some have called for the merger of the
HSC with the National Security Council (NSC).
Background
Among the initial actions taken by President George W. Bush in response to the
September 11, 2001, terrorist attacks upon the World Trade Center and the Pentagon was
the establishment of two new specialized agencies pursuant to E.O. 13228 of October 8,
2001.1 These entities were the Office of Homeland Security (OHS), located within the
Executive Office of the President (EOP) and headed by a new Assistant to the President
for Homeland Security, and the Homeland Security Council (HSC), chaired by the
President. Their creation demonstrated the commitment of the Administration to securing
the homeland and combating terrorism. Each constituted a specialized coordination
mechanism: the OHS for developing and coordinating the implementation of a
comprehensive national strategy to secure the United States from terrorist threats or
attacks; and the HSC for advising and assisting the President with respect to all aspects
of homeland security. Each would be provided resources for carrying out its
responsibilities. Moreover, the HSC would become the progenitor of, and repository for,
new Homeland Security Presidential Directives (HSPDs).
1 3 C.F.R., 2001 Comp., pp. 796-802.

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Unlike the OHS, the HSC was not explicitly located within the EOP. Its basic
membership was composed of the Vice President; the Secretaries of Defense, Health and
Human Services, and Transportation; the Attorney General; the Director of Central
Intelligence; the Directors of the Federal Bureau of Investigation and the Federal
Emergency Management Agency; the Assistant to the President for Homeland Security;
“and such other officers of the executive branch as the President may from time to time
designate.”2 Prior to the October 8, 2001, issuance of E.O. 13228, President Bush, as he
indicated in an October 5 letter to the Speaker of the House, authorized the transfer of
$195.9 million from the emergency response fund, which had been established by statute
for recovery from, and response to, the September 11 terrorist attacks,3 $25.5 million of
which was allocated for the establishment of OHS.4 Some portion of these funds directly
or indirectly also supported the HSC. The council held its initial meeting on October 29.
That same day, the President inaugurated the issuance of HSPDs “that shall record and
communicate presidential decisions about the homeland security policies of the United
States.” The initial directive concerned the organization and operation of the HSC; the
second, also issued on October 29, pertained to combating terrorism through immigration
policies;5 and the third, issued March 11, 2002, established the Homeland Security
Advisory System of five graduated threat conditions to apprise the executive branch and
the nation of the risk of a terrorist attack.6 Between October 2001 and January 2008, 23
HSPDs were issued, some in security classified status and some concurrently as National
Security Presidential Directives, another presidential directives series.7
The Council Reconstituted
When the President proposed creating the Department of Homeland Security in June
2002, his plan indicated that he anticipated the continued operation of both the OHS and
the HSC. According to the plan, “[t]he White House Office of Homeland Security and
the Homeland Security Council will continue to play a key role, advising the President
and coordinating a vastly simplified interagency process.”8 The President’s plan, as
introduced legislatively in the House on June 24, made no provision for a Homeland
Security Council. As reported a month later and subsequently approved by the House, the
legislation mandated a National Homeland Security Council chaired by the President and
composed of the Vice President, eight specified Cabinet Secretaries, the Director of
2 Ibid., p. 800.
3 115 Stat. 220.
4 The White House, letter to the Speaker of the House of Representatives, Oct. 5, 2001,
Washington, DC (copy in the possession of the author).
5 Weekly Compilation of Presidential Documents, vol. 37, Nov. 5, 2001, pp. 1568-1573.
6 Ibid., vol. 38, Mar. 18, 2002, pp. 394-397.
7 While unclassified HSPDs are usually available from the White House website upon issuance
and are published in the Weekly Compilation of Presidential Documents, they are not published
in the Federal Register or reproduced in the Public Papers of the Presidents of the United States.
See CRS Report 98-611, Presidential Directives: Background and Overview, by Harold C.
Relyea.
8 U.S. White House Office, The Department of Homeland Security (Washington: June 2002), p.
3.

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Central Intelligence, and such other officials as the President may designate. Joint
meetings with the National Security Council were an option. This basic arrangement
remained in the Homeland Security Act ultimately adopted by both houses of Congress
and signed into law by the President on November 25, 2002.9 Title IX of the statute
reconstituted the HSC, located it within the EOP, and made it responsible for advising
the President on homeland security matters; assessing the objectives, commitments, and
risks of the United States in the interest of homeland security and making resulting
recommendations to the President; and overseeing and reviewing homeland security
policies of the federal government and making resulting recommendations to the
President. Still chaired by the President, the council’s membership was modified to
include the Vice President, the Secretary of Homeland Security, the Attorney General, the
Secretary of Defense, and such other individuals as the President may designate. Joint
meetings with the National Security Council were an option.10
Thereafter, the HSC disappeared from the public record. It does not appear to have
complied with requirements for Federal Register publication of such basic information
as descriptions of its central organization; where, from whom, and how the public may
obtain information about it; “statements of the general course and method by which its
functions are channeled and determined”; and rules of procedure, substantive rules of
general applicability, and statements of general policy.11 No profile of, or descriptive
information regarding, the HSC or its members and staff has appeared, to date, in the
annual editions of the United States Government Manual.12
Similar conditions surround HSC resources. In late July 2003, House appropriators,
in their report on the Departments of Transportation and Treasury and Independent
Agencies Appropriations Bill, 2004, revealed that the Bush Administration had changed
the “Office of Homeland Security” account, previously listed for the EOP, to an account
for the “Homeland Security Council.” The report also questioned the continued role of
OHS, saying “it is not clear what work remains that cannot be effectively performed by
the Department of Homeland Security.” The account change also implied the shift of 66
staff personnel from OHS to the HSC, which the report questioned, “given the existence
and support of the Department of Homeland Security.” The committee cut the President’s
request of $8.3 million for the council to $4.1 million.13 Senate appropriators declined
to fund the HSC through the White House Office (WHO) account, as requested, and
recommended the $8.3 million sought by the President for the council in a separate
account for the HSC. They indicated that “the Homeland Security Council should be
funded as a separate account, which is consistent with the budgetary treatment of its
9 116 Stat. 2135.
10 116 Stat. 2258.
11 5 U.S.C. §552(a).
12 A profile of the council is available from the White House website at
[http://www.whitehouse.gov/hsc/].
13 U.S. Congress, House Committee on Appropriations, Departments of Transportation and
Treasury and Independent Agencies Appropriations Bill, 2004, a report to accompany H.R. 2989,
108th Cong., 1st sess., H.Rept. 108-243 (Washington: GPO, 2003), p. 163.

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predecessor, the Office of Homeland Security.”14 The HSC, however, has no statutory
authorization to receive appropriations. Conferees on the subsequent Consolidated
Appropriations Act, 2004, when providing funds for agencies of the Executive Office of
the President, allocated $7.2 million for the Homeland Security Council in the WHO
account.15 The House agreed to the conference report on December 8 and adjourned; the
Senate completed action on the legislation on January 23, 2004, and the President signed
the measure the following day.16
For FY2005, the President again requested funding for the HSC through the WHO
account. House appropriators, in recommending almost $2.5 million for the council, did
so in a separate account for the HSC, although the council has no authorization to receive
appropriations. They were also unhappy about accounting for another HSC resource,
saying,
The Committee is disturbed that White House officials have failed to provide the
Committee a definitive request for HSC staffing or budgetary resources for fiscal year
2005. Information providing [sic] for the hearing record states that the fiscal year
2005 budget includes “approximately” 40 full-time equivalent staffyears for direct
HSC hires and 26 detailees, for a total of 66 staff. This estimate, although
approximate, would be significantly above the level of onboard staff as of May 2004.
In future years, the Committee expects the Executive Office of the President to be able
to provide budget-quality estimates rather than approximations.17
Conferees on the subsequent Consolidated Appropriations Act, 2005, concurred on
the amount approved by the House for the HSC, but provided the funding through the
WHO account.18
When allocating funds for the WHO for FY2006, the report of the House Committee
on Appropriations specified that “[t]he Salaries and Expenses account of the White House
Office supports staff and administrative services necessary for the direct support of the
President, including costs for the Homeland Security Council.”19 The Senate counterpart
14 U.S. Congress, Senate Committee on Appropriations, Transportation, Treasury and General
Government Appropriations Bill, 2004, a report to accompany S. 1589, 108th Cong., 1st sess.,
S.Rept. 108-146 (Washington: GPO, 2003), p. 135.
15 See U.S. Congress, House Committee of Conference, Making Appropriations for Agriculture,
Rural Development, Food and Drug Administration, and Related Agencies for the Fiscal Year
Ending September 30, 2004, and for Other Purposes, conference report to accompany H.R. 2673,
108th Cong., 1st sess., H.Rept. 108-401 (Washington: GPO, 2003), p. 1015; Congressional
Record, daily edition, vol. 149, Nov. 25, 2003, p. H12409; 118 Stat. 321.
16 118 Stat. 3.
17 U.S. Congress, House Committee on Appropriations, Departments of Transportation and
Treasury and Independent Agencies Appropriations Bill, 2005, report to accompany H.R. 5025,
108th Cong., 2nd sess., H.Rept. 108-671 (Washington: GPO, 2004), p. 129.
18 118 Stat. 3246.
19 U.S. Congress, House Committee on Appropriations, Departments of Transportation,
Treasury, and Housing and Urban Development, the Judiciary, District of Columbia, and
Independent Agencies Appropriation Bill, 2006, report to accompany H.R. 3058, 109th Cong., 1st
(continued...)

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report, the related conference committee report, and the resulting Transportation,
Treasury, Housing and Urban Development, the Judiciary, District of Columbia, and
Independent Agencies Appropriation Act, 2006, did not contain such language and
otherwise made no reference to the HSC. House appropriators reiterated their 2006 report
language in their report on Transportation, Treasury appropriations for FY2007.20 The
counterpart Senate report did not contain such language. House appropriators again
reiterated this language in their report on the Financial Services and General Government
appropriations for FY2008.21 Neither the counterpart Senate report nor the subsequent
Consolidated Appropriations Act, 2008, contained such language or made any reference
to the HSC.

In its July 2004 final report, the National Commission on Terrorist Attacks Upon the
United States questioned the continued need for the HSC, saying, “To improve
coordination at the White House, we believe the existing Homeland Security Council
should soon be merged into a single National Security Council.”22 The executive director
of the Project on National Security Reform, a non-partisan study group formed to analyze
problems that inhibit interagency coordination, has also suggested such a merger.23 In
January 2008, at the time of presidential homeland security adviser Frances F.
Townsend’s departure from the White House, there was press speculation that her HSC
staff would be transferred to the National Security Council (NSC) with her deputy
supervising that staff in its new status.24 There has been no public indication that such a
staff shift has occurred. In mid-October 2008, it was reported that Ms. Townsend had
twice attempted to eliminate her homeland security adviser position, initially in the spring
of 2004 and again in early 2005, but had relented because the NSC staff was
overwhelmed with dealing with warfare in Afghanistan and Iraq and could not assume
oversight of domestic security matters.25 In mid-November, speculation appeared in the
19 (...continued)
sess., H.Rept. 109-153 (Washington: GPO, 2005), p. 133.
20 U.S. Congress, House Committee on Appropriations, Departments of Transportation,
Treasury, and Housing and Urban Development, the Judiciary, District of Columbia, and
Independent Agencies Appropriation Bill, 2007, report to accompany H.R. 5576, 109th Cong., 2nd
sess., H.Rept. 109-495 (Washington: GPO, 2006), p. 178.
21 U.S. Congress, House Committee on Appropriations, Financial Services and General
Government Appropriations Bill, 2008, report to accompany H.R. 2829, 110th Cong., 1st sess.,
H.Rept. 110-207 (Washington: GPO, 2007), p. 33.
22 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report (Washington: GPO, 2004), p. 406.
23 James R. Locher III, executive director, Project on National Security, briefing for CRS staff,
Mar. 6, 2008, Washington, DC.
24 “Fond Farewell,” Washington Times, Jan. 4, 2008, p. A11.
25 Chris Strohm, “Ex-Bush Adviser Cites Need for New Security Apparatus,” CongressDaily PM,
Oct. 15, 2008, available at [http://www.nationaljournal.com/congressdaily/print/
_friendly.php?ID=cdp_20081015_8843].

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press that transition assistants for President-elect Barack Obama might recommend that
the functions of the Homeland Security Council be transferred to another entity.26
The Council Reconsidered
The HSC was statutorily mandated in 2002 as an agency within the Executive Office
of the President. It became the recipient of the staff of the OHS when that agency was
eclipsed by the new Department of Homeland Security. It has, however, seemingly fallen
short of achieving complete agency status due to its (1) seeming failure to publish such
basic information as descriptions of its central organization; where, from whom, and how
the public may obtain information about it; “statements of the general course and method
by which its functions are channeled and determined”; and rules of procedure, substantive
rules of general applicability, and statements of general policy;27 (2) omission from the
annual volumes of the United States Government Manual; and (3) lack of an authorization
to receive appropriations as an agency within the EOP. Some have questioned the
continued need for the HSC, viewing its functions as being more efficiently and
effectively carried out by the National Security Council. Additionally, they maintain that
such a merger might result in some economies, if only minimal, and might also provide
an opportunity to eliminate what they see as the somewhat redundant HSPD series. The
situation may be subject to congressional review, reconsideration, and action.

26 Karen DeYoung, “Naming National Security Team Will Be a Priority for Obama,” Washington
Post, Nov. 19, 2008, p. A8.
27 5 U.S.C. §552(a).