DHS needs to clean up its act

Created 20 years ago in the wake of 9/11 to prevent terrorist attacks on U.S. soil, the Department of Homeland Security (DHS) has become notorious for abuse. DHS’s inhumane enforcement of immigration laws has deservedly garnered the bulk of Congressional and public attention, but its counterterrorism and intelligence efforts also need reform and oversight.

Time and again these programs have targeted people of color and protesters, while ignoring the obvious threat of white supremacist violence.

While DHS Secretary Alejandro Mayorkas has lately directed his staff to reorient to combatting “domestic terrorism,” a system with such a record of blatant bias and overreach requires revamping. If anything, by expanding the department’s reach into Americans’ lives and data, the pivot to domestic terrorism makes this need even more obvious and urgent.

DHS’s Office of Intelligence and Analysis is a top priority for an overhaul. This office is charged with disseminating terrorism intelligence and analysis to state and local law enforcement and other partners. It is well known that during the 2020 protests in Portland following the murders of George Floyd and Breonna Taylor, the office used authorities meant to address terrorism to “counter potential threats of graffiti, vandalism, or other minor damage.” But as documented by the agency’s general counsel, the rot went even deeper. For example, one of its senior officials pressured analysts to describe threats as “inspired” by “violent antifa anarchists,” despite the absence of any evidence.

A March 2022 report by DHS’s inspector general found that the office issued 366 open-source intelligence reports during the 2020 protests — but it was silent in the weeks leading up to the Jan. 6 attack on the Capitol, despite seeing calls to action by groups with a known history of violence, such as the Proud Boys. It is difficult to avoid the conclusion that the race and political leanings of those planning the gatherings played a role — and that this bias had devastating consequences.

And it is clear that DHS’s intelligence arm needs strong safeguards to prevent a recurrence.

The Office of Intelligence and Analysis also supports “fusion centers,” state-run information sharing hubs that receive federal funding. Some have followed a similar trajectory: disseminating unreliable information about supposed security threats and surveilling social justice protesters, including Black Lives Matter and Muslim activists. These failures echo decade-old findings from a bipartisan Senate investigation that conclude fusion centers were gathering information on constitutionally protected activity and “yield[ing] little, if any, benefit to federal counterterrorism intelligence efforts.”

American Muslims have been the primary target of other DHS counterterrorism efforts. Initiatives to counter violent extremism set their sights almost exclusively on Muslims, who also report being singled out by border agents for questioning, invasive searches of phones and laptops, and even detention without cause. Just last month, a group of Muslim Americans sued the department, accusing its agents of detaining them to ask intrusive questions about their faith, including whether they attend mosque and how often they pray.

Even apart from these excesses, the department’s activities touch the lives of millions of Americans — mainly through its tracking of travelers, both domestic and international, and its purchases of data about what people do and say online. DHS has used this information to build the nation’s largest governmental store of Americans’ information, covering hundreds of millions of people. This cache of information can reveal details of our lives that we would rather keep private and is susceptible to misuse, available to be exploited against political enemies and social movements. Its very existence impinges on our privacy. Even former high-level DHS officials describe this accumulation of records as posing acute civil liberties concerns.

Given DHS’s formidable powers, it ought to be subject to robust oversight. But this has been sorely lacking. Our examination of the internal offices charged with policing DHS programs and policies found that these offices are undercut by structural weaknesses, lack of support from DHS leadership, and at times their own timidity. Too often they are brushed off by the very players they are supposed to oversee.

Nor is it at all clear that DHS’s counterterrorism programs have actually contributed to keeping Americans safer. Instead, the department has routinely been cited by its own inspector general for rolling out initiatives without even bothering to test them for effectiveness.

Secretary Mayorkas must overhaul the department’s approach to counterterrorism, putting transparency and the protection of civil rights and civil liberties at the center of its efforts.

There’s a lot that Secretary Mayorkas can do. He must fortify DHS’s safeguards against religious and racial profiling and adopt robust protections for privacy and free expression; bring the agency’s data collection and sharing activities out of the shadows; ensure that programs are scientifically validated and include metrics to measure success before they are rolled out; and empower the agency’s offices dedicated to privacy, civil rights, and civil liberties so that their oversight functions have real teeth.

Over the last two decades, DHS has needlessly targeted social movements and minority communities in the name of counterterrorism, while turning a blind eye to the crimes of white supremacists. It’s past time to fix the systems that allowed this to happen.

Faiza Patel is co-director and Rachel Levinson-Waldman is deputy director of the Liberty and National Security Program at the Brennan Center for Justice at NYU.