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When congress decided that the United States needed a new organization to protect it from terrorism, consolidation of the nation’s law enforcement and security components drove much of the debate. The Homeland Security Act of 2002 not only reflected the intent (and final consensus) of Congress, but it also spurred the largest reorganization of government in more than a generation: Not since the creation of the Department of Defense and the Central Intelligence Agency more than 50 years earlier had Congress ordered such a massive realignment of federal resources. The new department � coined the Department of Homeland Security (DHS) � combined 22 agencies into a superbureaucracy that tops more than 200,000 employees. Now five years old, DHS remains a work in progress and represents an organization that has demonstrated impressive victories and stunning failures. The subject of countless congressional hearings, media reports and U.S. Government Accountability Office (GAO) inquiries, the failures have been easy to identify. In November 2007, for example, the GAO revealed that its investigators successfully penetrated airport security with components used to make improvised explosive devices concealed in carry-on luggage and on their persons. Investigators did so by exploiting security weaknesses that “were identified based on a review of public information.” Considering that DHS has devoted billions of dollars to prevent terrorists from commandeering airplanes and often touts the multiple layers of airport security that were added since Sept. 11, 2001, these reports are disheartening. A dilemma of leadership Other troubles have been more subtle but no less significant. Though the leadership at the very top � first Secretary Tom Ridge and now Michael Chertoff � has enjoyed long tenures, vacancies have plagued many senior leadership positions. In July 2007, a report prepared by the House Committee on Homeland Security found that “nearly one in four of the executive resource positions is vacant at the Department of Homeland Security.” There is no single explanation for the vacancies, but the lure of lucrative private-sector job offers and the fact that DHS counts a high number of senior political appointees among its ranks are two factors. The leadership dilemma must be seen in its larger context, including the transition of responsibility set to occur in January 2009. The importance of the transition cannot be underestimated because DHS � unlike every other cabinet department � has yet to experience a change in administration. There is little doubt that the leadership holes contributed to the lowest point the history of DHS: Hurricane Katrina. While some elements � such as the Coast Guard � demonstrated amazing capabilities and saved lives, DHS, on the whole, failed. Chertoff kept his job, despite legitimate calls for his resignation. This failure, among other things, contributed to changes at DHS and the passage of the Post-Katrina Emergency Reform Act of 2006. The law reconfigured the Federal Emergency Management Agency to enhance the government’s preparedness and response to major emergencies, whatever their origin. Although the failures generate attention, DHS has achieved measurable success. For example, as part of the Homeland Security Act, Congress included special liability protections for technologies that prevent or mitigate terrorism. Without liability protection, the manufacturers or providers of such technologies might be chilled from innovation. The task of administering the program and developing the implementing regulations under the Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act, fell to DHS. To date, DHS has approved and granted SAFETY Act status to more than 200 homeland security technologies. DHS has also implemented important programs to enhance the flow of information between the government and the private sector, improve cybersecurity and protect critical infrastructures. Under the Protected Critical Infrastructure Information (PCII) program, the private sector can share security-related information with DHS without fear that the information will be used or disclosed improperly. The task of administering the program and developing the implementing PCII regulations also went to DHS, which it has done well. No organization � especially an amalgamation as large as DHS � can succeed overnight. Yet, the mission of DHS required success on day one. Despite legitimate criticism and real failures, the United States has not suffered an act of terrorism during DHS’ five-year existence. This fact must temper any criticism and, at a minimum, elicit an acknowledgment of what DHS has “gotten right.” Steven E. Roberts, an NLJ columnist, is a Boca Raton, Fla.-based attorney who specializes in homeland security regulatory matters.

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