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A recent presidential appointment has revived a dispute over whether two law enforcement agencies within the Homeland Security Department should be merged.

President Bush gave Julie Myers a recess appointment last week to be the new director of the Immigration and Customs Enforcement bureau. The move meant Myers escaped confirmation by the Senate, where some lawmakers questioned whether she had the experience and skills to manage the second-largest investigative agency in the U.S. government, next to the FBI.

Some critics also argue the administration missed an opportunity to merge ICE and the Customs and Border Protection bureau. Before Myers was appointed, both ICE and CBP had vacancies at the top. Former ICE Administrator Michael Garcia left last fall to become the U.S. attorney for the Southern District of New York. Former CBP Commissioner Robert Bonner retired in November.

By installing a new chief at ICE, the administration clearly signaled that it has no intent to overhaul the agencies.

CBP is responsible for enforcing the nation's immigration and customs laws at and immediately around the nation's borders and ports of entry. ICE is responsible for investigating criminal and terrorist activity and enforcing immigration and customs laws within the interior.

"Our hope was that, since ICE and CBP were vacant, this would have been the opportune time to put the agencies together," said an ICE official who asked to remain anonymous.

The official said ICE is so dysfunctional that it does not matter who is in charge of the agency.

"The issue here is not about Myers," the official said. "My position is that Jesus Christ could not fix this place under the current structure."

Qualifications Questioned

Concerns also have been raised regarding Myers' personal and political connections within the administration. She is a niece of former Joint Chiefs of Staff Chairman Gen. Richard Myers and she recently married the chief of staff for Homeland Security Secretary Michael Chertoff.

Myers, 36, pledged during her confirmation hearing last September to work with experienced agents and other "knowledgeable" officials throughout government to improve ICE.

She cited her previous position as assistant secretary for export enforcement at the Commerce Department, where she was responsible for a budget of $25 million and supervised about 200 full-time employees, as her main management experience. She also noted her experience as chief of staff to Chertoff when he headed the criminal division of the Justice Department, which had about 500 lawyers and a budget of more than $120 million.

ICE has more than 15,000 employees and a budget of roughly $4 billion.

Myers was also a deputy assistant secretary for financial crimes at the Treasury Department and an assistant U.S. attorney in the Eastern District of New York, where she prosecuted criminal cases.

"I believe it's fair to say that it was based on my performance at the Justice Department that Secretary Chertoff recommended me for this job and believes that I have sufficient qualifications for this job," she told the Senate Homeland Security and Governmental Affairs Committee.

"I believe that my management style has worked at the Commerce, Justice and Treasury departments and [if confirmed] I will do all that I can to ensure that the ICE employees . . . have a clear sense of mission and exceed in their very daunting goals."

The committee approved Myers in October by a vote that fell along party lines, with Republicans voting in her favor.

Damaged Goods

With the recess appointment, Myers takes over ICE under a cloud of controversy. The appointment lasts only until the end of the next session of Congress, which will likely be December 2007.

"This is outrageous," said Michael Cutler, a fellow at the Center for Immigration Studies and former immigration agent. "She's damaged goods ... [and is] there on a very short tenure."

Cutler, who worked at the former Immigration and Naturalization Service for 30 years, said Myers does not appear to have the necessary immigration enforcement background.

"We need an experienced hand in this, somebody who can hit the ground running," he said. He also supports merging ICE and CBP.

Immigration reform is expected to be a major issue as Congress returns to work. The House passed a bill in December that would strengthen immigration enforcement. The bill did not include provisions for a guest worker program, despite the White House's support for one. The Senate is expected to take up immigration reform and guest worker proposals in February, setting the stage for a tough conference between the two chambers.

Myers said during her confirmation hearing that her top priority would be finding, prosecuting and removing illegal aliens.

Ongoing Dispute Rekindled

The dispute over merging ICE and CBP dates back to 2003, when the Homeland Security Department was created. Critics contend there was no logical explanation for establishing two separate agencies - a move that required breaking up the former Customs Service. Uniformed Customs inspectors were assigned to CBP, while investigative agents were placed in ICE.

"You can't have an effective police department if the uniformed officers and the detectives are answering to separate chains of command," the ICE official said.

The official said one of the biggest problems is ICE and CBP have separate legal offices, which sometimes hand down differing legal interpretations. Disputes also have arisen when ICE wants to parole an illegal immigrant in order to pursue investigative leads, but CBP objects, the official added.

Advocates of stronger immigration enforcement argue that former Customs agents at ICE do not fully understand immigration laws and are more interested in performing investigations than enforcing immigration rules.

The DHS inspector general issued a controversial report in November citing numerous problems with CBP and ICE and calling for the two agencies to be merged.

DHS disputed parts of the report and strongly opposed the idea of a merger. Department officials acknowledged the need for reforms at ICE, as well as better coordination between ICE and CBP. But they said many of the issues cited in the IG report were the result of financial problems at ICE that either have been solved or are being addressed. The current organizational structure should be given more time to succeed, they argued.

Looking to Congress

The ICE official said it appears that only legislative action by Congress will lead to a merger of ICE and CBP. The prospect of such action, however, is uncertain.

A bill by Rep. Peter King, R.-N.Y., chairman of the House Homeland Security Committee, originally contained language that would have merged ICE and CBP. That language was dropped, however, when the bill was finally introduced in December.

Some senators have expressed interest in merging the agencies.

Sen. Susan Collins, R-Maine, who chairs the Homeland Security and Governmental Affairs Committee, said Chertoff should be given more time to make structural changes at the agencies. She added, however, that the committee will consider legislation this year to merge the agencies if "significant changes are not made in a reasonable amount of time."

Richard Kessler, Democratic staff director for the Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, supports a merger.

"My perspective is that right now it does look like sense to merge CBP and ICE," he said. "My expectation is that if we do ... an authorization bill of some type on DHS this year, that [it] will be one of the issues on the table."

He added that he is appointing a staff member to examine issues surrounding a merger.

COMMENTS

• To the RAC, please tell me that you have pointed out such issues to as many people as possible, particularly people of influence (hopefully in the form of letters), and that you haven't restricted your distribution of this type of info to internet boards such as this one. Please tell me that. We can't rely on those in a position to do something about this to read the OIG report on their own. It literally has to be dictated to/for them. There simply are too many people who will voice their opinions here, and even point out some extremely useful and telling information, but then they leave it at that. We need more people who will take it to the next step. GovExec.com reader Posted February 7, 2006 5:41 PM
• If you want to know why ICE was formed, read the last pages of the OIG report re: merger CBP/ICE. It confirms what most of us suspected. It doesn't come out and actually say it, but it is transparently clear that the FBI was behind this maneuver. It says that there was a panel of heads of agencies that were to transfer into DHS to discuss the pros/cons of this move. They discussed pro/cons of splitting up USCS/INS and decided against it. (Everything they predicted if a split was made has occurred.) For over 10 years, Congress discussed the concept of one face at the border by USCS absorbing the INS and Agriculture Inspectors. They also wanted the INS 1811s to be a stand alone agency. Right up until it was announced in the news otherwise, USCS was to transfer into DHS as a whole entity and absorb the INS & Agriculture Inspectors. INS 1811s were to be a stand alone agency. But, according to the OIG report other federal agencies objected to the USCS scenario as it would make them too large an agency with too much influence. The OIG report could not determine who decided to turn the tables on us. (A newspaper article indicates it was the "gang of 5.") Having solely INS 1811s (approx 2,000 employees) to create an agency (ICE) did not make them strong enough for a voice in Congress, so it was decided to throw FPS into the mix. Still not enough employees, so (we shoulda ducked) USCS 1811s were thrown into the mix. This had the double purpose of beefing up INS 1811s and crippling USCS voice in Congress. It came as a total surprise to our commissioner and others on the panel. They learned of this split the night before it hit the news. So there you have it. GovExec.com reader Posted February 2, 2006 10:43 AM
• Most major news outlets are publishing the news touting the recent discovery of “the largest smuggling tunnel ever” by U.S. law enforcement. The tunnel purportedly runs from Tijuana, Mexico to San Diego, California. Question. Is this an ICE problem or a CBP problem? The answer should be self-evident and yet the best example of why these two entities should be merged and contained under the same roof. Joe Customs - 1789 GovExec.com reader Posted January 27, 2006 11:24 AM