Questions re Janet Napolitano

President-elect Obama has tapped Arizona Governor Janet Napolitano to become the new Secretary of Homeland Security. It seems to be a good choice: Napolitano is smart, politically experienced, and apparently did a wonderful job both as US Attorney in Arizona and as that state’s Attorney General.

But her background might also raise questions–not about her fitness for the job (which is indisputable), but rather about how we go about making DHS a real, functioning department. The reason is that Napolitano’s background and world view are that of a prosecutor, and public discussion of the agency is beginning to take a turn to thinking about it as sort of a big law-enforcement agency, which it is not–or at least only is partially.

As with anything about DHS, the key text is Edward Alden’s terrific book, “The Closing of the American Border: Terrorism, Immigration, and Security Since 9/11.” This book, which appeared a couple of months ago, hasn’t gotten the press that The Dark Side or Angler have (and they are both also great), but it should. Alden posits a split in thinking about homeland security between the “technocrats,” who wanted to use precisely-tailored measures based upon technology to control the border and enphasized intelligence gathering, and the “cops,” who took a traditional law enforcement approach and particularly relied upon immigration enforcement, because they did not have to worry about constitutional due process and other Bill of Rights limitations.

Alden’s book is so good in no small part because he shows how neither approach is perfect: technology just can’t do what we want it to do, and what its promoters (often the contractors who make it) claim it will do. But the costs of a pure law enforcement approach are even worse: there is precious little evidence that rounding up thousands of immigrant men of Middle Eastern background actually get us much intelligence or prevent crimes. Instead, they undermine intelligence by destroying the government’s credibility in immigrant communities and are fabulously expensive.

And there are two other terrible problems with the cops’ approach:

1) First, it keeps people out whom we want and need to let in. Put another way, the law enforcement approach doesn’t consider the costs of tightening the border: theoretically it could, but its adherents are used to chasing bad guys, not thinking about broader policy goals. Alden begins his book with the tale of a world-class pediatric cardiology surgeon, who is from Pakistan, and couldn’t get into the country for years because, well, he’s from Pakistan. How many childrens’ lives were lost because of this? America is in danger of losing is scientific and technical edge because we keep out thousands of talented students, who normally might have stayed in the US and helped build American companies. And US companies start moving production overseas, because they can’t interact with foreigners for meetings and projects, because they can’t get into the country.

2) Second, the law enforcement approach likes the immigration power because it frees it from legal shackles. But the more that DHS guards the border through immigration enforcement, the more its mission begins to morph from a security agency to an immigration enforcement agency. Indeed, this is probably a major reason why Obama tapped Napolitano: she’s a border state governor with a tough reputation for cracking down on illegals, and Obama doesn’t want to get into a cultural struggle on that issue (at least not now). This might be a wise political judgment, but it might have the unintended effect of distorting what DHS should be and needs to be. If I have a choice between hiring Border Patrol guards and hiring intelligence operatives to disrupt Al-Qaeda and Hizbullah, there’s no question we need to choose the latter. But I worry that an immigration-focused DHS will push for the former.

I hope that Napolitano understands these issues. As I said, she is smart and competent, and if she has a strong staff who can help her navigate the poisonous interagency rivalries that have sapped DHS’ strength, she has the potential to do an outstanding job. But she needs to understand what that job is.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.