Homeland Security’s Defiance Presents Vexing Challenge for Congressional Oversight

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In early September 2020, the Senate Intelligence Committee sent a letter to the Department of Homeland Security’s Office of Intelligence and Analysis requesting information from the agency about several of its intelligence gathering operations. The letter was sent in response to a flurry of scandals involving the Office, including a recent Washington Post report that it generated intelligence reports on journalists covering the Portland Black Lives Matter protests. Shortly following the Post story, The Nation cited anonymous intelligence officials reporting that DHS undertook invasive surveillance measures against both journalists and protesters to generate the reports, including intercepting their telecommunications.

Homeland Security has not provided the Senate with the information it requested, and on September 24, 2020, Acting Secretary of Homeland Security Chad Wolf denied the intelligence reports existed during his testimony to the committee at his confirmation hearing. However, the Washington Post report was based on open source intelligence reports that contained copies of leaked DHS documents, and DHS recalled those reports two days before Wolf’s denials to Congress. Furthermore, Wolf also defied a subpoena from the House Intelligence Committee to testify related to a separate whistleblower complaint.

Article I of the United States Constitution vests in Congress the implied power to oversee the activities of intelligence agencies, including the power of investigation and inquiry. This includes the power to issue subpoenas compelling agency officials to testify and taking other actions necessary to conduct proper oversight investigations. Traditionally, Congress has relied on the voluntary compliance of executive branch officials with its demands. While executive officials may resist congressional power, norms of cooperation typically assure agencies ultimately comply with demands Likewise, the Supreme Court and D.C. Court of Appeals have indicated that while the federal judiciary may intervene to mediate disputes, there is a clear judicial preference for cooperation between the executive and legislative branches, and for involving the courts only when absolutely necessary.

Thus, the question for Congress is whether DHS’s flat-out refusals to provide the information requested and Wolf’s open refusal to testify before the House Intelligence Committee rises to a point where judicial intervention may be necessary.

Additionally, it is unclear what remedy might be available for courts to bring DHS into compliance. While federal courts have the power to enforce congressional subpoenas, it is unclear what a court ruling in the House’s favor would do in this circumstance. Wolf is already continuing to serve despite a ruling of a federal court that declared he was improperly appointed to his Acting Secretary role and indicated that actions taken under his direction may be subject to reversal at a later time. The agency’s apparent comfort with flouting the law despite being warned raises serious questions regarding whether, even with a court order, Congress will be able to obtain the information it seeks.

Furthermore, additional allegations of wrongdoing at DHS have emerged in recent weeks. This includes multiple whistleblower complaints alleging severe misconduct such as political appointees pressuring DHS officials to curtail their reporting on Russian interference with the 2020 elections and doctors affiliated with a DHS administered detention center performing unnecessary hysterectomies on large numbers of detainees.

Beyond the shock of the revelations themselves, the Department’s open defiance of the legislative and judicial branches is of serious concern. The courts and the Government Accountability Office have warned DHS officials that the orders coming from the Acting Secretary are likely illegitimate. It is unclear how Congress will hold DHS officials accountable.