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The Potential Impact of Homeland Security Reorganization on Federal Law Enforcement Activities

Related Bio: Stephen E. Flynn
June 17, 2002

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Statement of

Stephen E. Flynn, Ph.D.

Commander, U.S. Coast Guard (ret.)

Jeane J. Kirkpatrick Senior Fellow for National Security Studies

Council on Foreign Relations

sflynn@cfr.org

(212) 434-9676

on

“The Potential Impact of Homeland Security Reorganization on Federal Law Enforcement Activities Unrelated to Terrorism and Narcotics Interdiction.”

presented before the

U.S. House of Representatives

Government Reform Committee

Subcommittee on Criminal Justice, Drug Policy and Human Resources

Room 2154, Rayburn House Office Building

Washington, D.C.

Monday, June 17, 2002


Good afternoon, Mr. Chairman.

My name is Stephen Flynn. I am the Jeane J. Kirkpatrick Senior Fellow for National Security Studies at the Council on Foreign Relations where I am directing a multi-year project on “Safeguarding the Homeland: Rethinking the Role of Border Controls.” I have also served as a consultant on the homeland security issue to the U.S. Commission on National Security (Hart-Rudman Commission) and to the Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving Weapons of Mass Destruction (Gilmore Commision). Just recently, I retired as a Commander in the U.S. Coast Guard after 20 years of active duty service.

Throughout the 1990s while serving as a professor at the U.S. Coast Guard Academy, I have studied many of the criminal challenges that have occupied the attention of this sub-committee. I have noted with concern three developments relevant to the subject of today’s hearing with regard to organized crime. First, is the trend towards diversification. Criminal organizations rarely restrict their activities to a single “specialty” like narcotics trafficking, but are engage in other criminal conspiracies such as cargo theft, migrant smuggling, trade fraud, software piracy, and internet fraud. For instance, during a field visit to Southern Florida in June 1999, I learned from the Miami Dade-FBI Cargo Theft Task force that there was substantial Colombian involvement in the theft of high technology moving between the Free Trade Zone in northwestern Miami and the port of Miami. Around the same time, bootleg-software and illegal Asian migrants were arriving in the United States in containers in Los Angeles and Long Beach as a part of smuggling operations run by Chinese gangs. Nigerian criminals, who have a long-standing reputation as master con-artists, took to the internet to lure new victims into fraud schemes.

These examples also point to the second trend which gathered momentum in the 1990s which is the increasingly global scope of the activities of criminal organizations. More and more criminals operate as non-state actors who find borders essentially meaningless. In fact, the thugs find the requisites of sovereignty to be largely an ally in their global enterprises. Since sovereign governments reserve for themselves the right to draft laws, to establish rules and procedures for operating its criminal justice system, and to establish public policy priorities; law enforcement necessarily must be pursued against a backdrop of widely differing national jurisdictions. The inevitable lack of harmonization muddies the prospect for seamless international cooperation among enforcement authorities. The collapse of the Soviet Union ironically contributed to this challenge by adding more states to the community of nations—many of them with nascent or dysfunctional criminal justice systems. One result is that organized criminal networks are finding the world to be their oyster.

The third trend has been the closer linkages between organized crime and terrorists, guerrillas, and insurgency groups. The end of the Cold War ushered in the end of superpower benefactors who had often supported groups fighting what were effectively a form of proxy warfare between the Soviet Union and the United States. With the falling of the wall, an important source of cash and weapons largely dried up, but the conflicts throughout the developing world did not. Antagonists on both sides had to find an alternative source to bankroll their cause and to arm their foot soldiers. Most found that crime paid, particularly if they could operate from the relative sanctuary of a failed or weak state. Somalia, Afghanistan and Colombia are prime exemplars of this unfortunate bit of post-Cold War fallout.

I point to these three developments—diversification, globalization, and the crime-terrorism-guerrilla nexus—to make a critical point relative to the subject of this hearing today: the challenges of terrorism and narcotics interdiction can not be isolated from the issue of organized crime more generally. The corollary that flows from this conclusion is that many of the enforcement activities that target crimes such as cargo theft, tax evasion, migrant smuggling, and internet fraud will reap important dividends in fighting narcotics smuggling and terrorist activities directed at the U.S. homeland.

Consider the case of U.S. seaports. According to the report of the U.S. Interagency Commission on Crime & Security in U.S. Seaports in 2000, among the “significant criminal activity” that takes place in the nation’s major seaports are drug smuggling, stowaways, trade fraud, cargo theft, environmental crimes, export control violations, and the illegal export of currency and stolen vehicles. These crimes occur against a backdrop where seaports serve as the global on-ramps and off-ramps for the overwhelming majority of the imports and exports that move to and from North America. Thus, for would-be terrorists, seaports satisfy the age-old criteria of opportunity and motive. “Opportunity” flows from the volume and velocity of the people, goods, and conveyances that pass through them. In the present situation, a would-be terrorist can expect favorable odds that enforcement authorities will be unable to detect and intercept a container or vessel carrying a deadly weapon, including a weapon of mass destruction. “Motive” is derived from the role that maritime transportation plays in the supply chains of many companies. This critical dependency translates into the tempting possibility that an attack involving the maritime transportation system could inflict serious harm throughout the U.S. economy.

In short, the absence of a robust capacity to filter the illicit from the licit in the face of: (a) a heightened terrorist threat environment, and (b) the growing volume of people and goods moving through international trade corridors, places U.S. and global commerce at substantial risk of disruption. But the complexity of the port security agenda highlights the difficulty of securing progress within the existing governmental framework:

(1) Seaports cannot be separated from the international transport system to which they belong. Ports are in essence nodes in a network where cargo is loaded on or unloaded from one mode—a ship—to or from other modes—trucks, trains, and, on occasion, planes. Therefore, seaport security must always be pursued against the context of transportation security. In other words, efforts to improve security within the port requires that parallel security efforts be undertaken in the rest of the transportation and logistics network. If security improvements are limited to the ports, the result will be to generate the “balloon effect”; i.e., pushing illicit activities horizontally or vertically into the transportation and logistics systems where there is a reduced chance of detection or interdiction.

(2) Port security initiatives must be harmonized within a regional and international context. Unilateral efforts to tighten security within U.S. ports without commensurate efforts to improve security in the ports of our neighbors will lead shipping companies and importers to “port-shop”; i.e., to move their business to other market-entry points where their goods are cleared more quickly. Thus the result of unilateral, stepped-up security within U.S. ports could well be to erode the competitive position of important America ports while the locus of the security risk simply shifts outside of our reach to Canada, Mexico, or the Caribbean to ports such as Halifax, Montreal, Vancouver, and Freeport.

(3) Since U.S. ports are among America’s most critical infrastructure, they should not be viewed as a primary line of defense in an effort to protect the U.S. homeland. The last place we should be looking to intercept a ship or container that has been co-opted by terrorists is in a busy, congested, and commercially vital seaport.

The complexity of the seaport security agenda also points to the need to temper aspirations for fail-safe security at home with a risk management approach. Risk management involves developing the means to identify transnational activities and actors that pose little or no risk to the United States so that limited regulatory, enforcement, and security resources can be targeted at those which present a high risk. Such an approach places a premium on good intelligence and developing a capacity to practice what cyber-security experts call “anomaly detection.” In the computer industry, anomaly detection represents the most promising means for detecting hackers intent on stealing data or transmitting computer viruses. The process involves monitoring the cascading flows of computer traffic with an eye toward discerning normal traffic; i.e.; that which moves by way of the most technologically rational route. Once this baseline is established, software is written to detect aberrant traffic. A good computer hacker will try to look as much as possible like a legitimate user. But because he is not legitimate, he inevitably must do some things differently. Good cyber-security software will detect that variation and deny access. For those hackers who manage to get through, their breach is identified and shared so that this abnormal behavior can be removed from the guidance of what is normal and acceptable.

In much the same way, the overwhelming majority of the cross-border traffic that moves through the global networks upon the United States and the global community depends—move in predictable patterns. If regulators and enforcement authorities whose daily tasks place them in contact with those networks are given access to intelligence about real or suspected threats and are provided the means to gather, share, and mine data that provide a comprehensive picture of “normal” traffic to enhance their odds of detecting threats when they materialize. Even in the absence of specific intelligence, front-line agents can still often detect abnormal behavior because of their intimate understanding of the environment in which they operate, and the relationships they have with legitimate players who operate in that milieu. This is what happens when a Coast Guard boarding officer is tipped off by a mariner about a fishing vessel that appears to be operating erratically, and when he stops and inspects that vessel, he discovers that it has the wrong kind of gear for the fishery in which the captain claims he is working. The officer then conducts an exhaustive search and locates contraband within a carefully disguised compartment on that vessel.

Stressing the importance of anomaly detection as a tool for identifying and intercepting criminal or terrorist activity highlights the fact that an important element of the homeland security mission requires that front-lines agencies must have the means to do well what they have been traditionally tasked to do. That is, it is in pursuing their day-to-day work that they will develop the expertise, the relationships, and possess the authority to stop and intercept that which they discover to be aberrant. Coast Guard men and women who are out on daily patrols to interdict drugs and illegal migrants, to protect fisheries, to advance safety among recreational boaters, and monitoring the movements of hazardous materials on ships and within ports who are going to have the physical presence and the requisite presence of mind and authority to pick out more nefarious activities. Similarly, it is the Customs inspector who routinely examines a shipping manifest to insure compliance with U.S. revenue laws that is best positioned to spot a shipment that makes no commercial sense, such as a very low-cost commodity moving on a high-cost conveyance. For the Animal and Plant Health Inspection Service, the skills it takes to prevent agricultural products that could contain natural blights or diseases from entering the country, equips them to spot acts of terrorism involving the global food supply.

Based on the above, getting homeland security right requires three things. First, a paradigm shift that moves away from a “gates, guards, and guns” approach to security and towards a network/risk-management approach for mitigating the threats associated with catastrophic terrorism. Second, that the capacity of the agencies who play the role of first-detectors and first-responders in these networks must be commensurate with the responsibilities they shoulder. Third, that the work of these agencies must be supported by enhanced communication and coordination with the national security and intelligence communities. The obvious question this ambitious agenda raises is: can this be accomplished without a major realignment of those agencies? The past and post-September 11 experience to date would suggest that the answer is no.

We must be candid in recognizing that front-line regulatory and enforcement agencies whose roles are most critical to advancing this expanded homeland security agenda have been neglected for years. Further, this neglect has not been benign. Their parent departments, Congressional appropriators, and OMB reviewers have historically treated them as orphans. Placed in an environment where the inevitable decisions about resource trade-offs are made by overseers with a non-enforcement and non-security focus, we should not be surprised that these agencies are so poorly positioned to get from where we are to where we need to be. Against this backdrop and in light of the fact that the catastrophic terrorism promises to be a long-term challenge versus a near-term crisis, the President has appropriately proposed major reorganization.

In the end, organizing for homeland security is really a subset of the broader challenge of how to we work to ensure that security is an organic part of the global networks: (1) that criminals and terrorists will increasingly target or exploit, and (2) upon which the United States and the international community depends. The events of September 11 should have fatally undermined the prevalent myth of the 1990s that “less is more” in advancing globalization. Managing complex, concentrated, and interdependent systems requires protocols and the means to ensure those protocols are being abided by. Done smartly, this can be accomplished—must be accomplished—by robust partnerships between the private and public sector and through much more international cooperation. This cannot be done in a leadership or organizational vacuum. Further, if we avoid doing the heavy lifting now, in the aftermath of future terrorists attacks, we will have to tackle these issues with the inevitably diminished government legitimacy that goes with being judged as having done too little, too late to provide the core function of government—assuring the safety and security of its people.

In short, the American people can look forward to a “two-for” by combining many of the front-line law enforcement agencies into a new Department of Homeland Security. One, they will get a more robust capability for detecting and intercepting terrorists before they arrive or carry out their attacks on American soil. Second, they will get more capable agents and agencies to combat crime. Any effort to trade off the one for the other would only be self-defeating.

Thank you.


BIOGRAPHICAL SKETCH OF DR. STEPHEN E. FLYNN

Stephen Flynn has been a Senior Fellow with the National Security Studies Program at the Council on Foreign Relations, headquartered in New York City, since June 1999. On March 15, 2002, he was appointed as the inaugural occupant of the Jeane J. Kirkpatrick Chair. Currently at the Council, Dr. Flynn is directing a multi-year project on “Protecting the Homeland: Rethinking the Role of Border Controls.” He is author of several book chapters and articles on homeland security, border control, transportation security, and the illicit drug trade. His recent publications include, “America the Vulnerable,” in Foreign Affairs (Jan/Feb 2002), “The Unguarded Homeland” in How Did This Happen? Terrorism and the New War, PublicAffairs Books (Nov 2001); and "Beyond Border Control.” Foreign Affairs (Nov/Dec 2000).

In January 2002, Dr. Flynn was appointed to the National Academy of Sciences Panel on Science and Technology for Countering Terrorism in Transportation and Distribution Systems. He has served in the White House Military Office during the George H.W. Bush administration and as a director for Global Issues on the National Security Council staff during the Clinton administration. From August 2000 to February 2001, he served as a consultant on the homeland security issue to the U.S. Commission on National Security (Hart-Rudman Commission). He was a Guest Scholar in the Foreign Policy Studies Program at the Brookings Institution from 1991-92, and in 1993-94 he was an Annenberg Scholar-in-Residence at the University of Pennsylvania.

A 1982 graduate of the U.S. Coast Guard Academy, Dr. Flynn served in the Coast Guard on active duty for 20 years, retiring at the rank of Commander. He received the M.A.L.D. and Ph.D. degrees in International Politics from the Fletcher School of Law and Diplomacy, Tufts University, in 1990 and 1991. He has received academic prizes for his undergraduate and graduate studies. In 1991 he became the first Coast Guard officer to be selected as a Council on Foreign Relations’ International Affairs Fellow.

Dr. Flynn has lectured around the United States and abroad on the homeland security, border control, drugs and crime issue, has provided testimony on Capitol Hill and before the Canadian House of Commons, and has appeared as a guest commentator on Nightline, the Charlie Rose show, 60 Minutes, CNN, National Public Radio, and BBC Radio.

During his Coast Guard seagoing career, he had two tours as commanding officer of the Coast Guard Cutters REDWOOD and POINT ARENA, and one tour as operations officer of the Coast Guard Cutter SPAR. His professional awards include the Legion of Merit, Meritorious Service Medal, the Coast Guard Commendation Medal and the Coast Guard Achievement Medal. In 1999, he received the Coast Guard Academy’s Distinguished Alumni Achievement award.

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