In the run up to Jan. 6, the Department of Homeland Security (DHS) considered the certification at the Capitol “routine congressional business” and did not properly take into account the threat environment, a new report from the nonpartisan U.S. Government Accountability Office (GAO) says. The result is that it did not consider special event designations that could have raised the security profile at the Capitol before the insurrection.
The report, Capitol Attack: Special Event Designations Could Have Been Requested for January 6, 2021, But Not All DHS Guidance Is Clear, is the first published product in what GAO calls “a body of work underway that examines the preparation, coordination, and response on January 6.” The report looks at the question of why the events of Jan. 6 did not receive special event designations that would have resulted in law enforcement agencies bolstering security on the day of the events.
The lack of designations is seen as an important link in the chain of security failures that contributed to the Capitol being overrun in a violent insurrection that sought to stop the certification of the Electoral College votes. Other failures include the absence of an intelligence bulletin specifically warning of threats to the Capitol that day. Former DHS officials and Senate investigators have puzzled over these related issues:
- In January, Elizabeth Neumann, a former DHS assistant secretary for threat prevention and security policy who left her office in April 2020 said that DHS and the FBI “were aware of groups coming to Washington and some more prominent individuals, but for reasons of fear didn’t want to formalize reports,” and that “there was a fear that that would be a career-limiting move.”
- At a hearing with former DHS intelligence officials on May 18, Francis Taylor, former DHS Under Secretary in the Office of Intelligence & Analysis testified that “we have a process in this country around major events to produce threat assessments culminating from the information we have collected across the country- that didn’t happen. Why it didn’t happen — I can’t say what was in the minds of the leadership in charge at the time — but I find it difficult to accept the fact that that process was not applied to this event, as with all other events in our threat analysis process.”
- The June Senate report, Examining the U.S. Capitol Attack: A Review of the Security, Planning and Response Failures on January 6, found that “FBI and DHS frequently provide threat assessments in advance of high profile events designated as National Special Security Events or Special Event Assessment Ratings, such as inaugurations and Super Bowls.” But, it found, “[n]either the Department of Homeland Security (‘DHS’) nor the Federal Bureau of Investigation (‘FBI’) issued formal intelligence bulletins about the potential for violence at the Capitol on January 6, which hindered law enforcement’s preparations for the Joint Session of Congress.”
The designations — including the National Special Security Event (NSSE) and the Special Event Assessment Rating (SEAR) — can “enhance coordination of protective antiterrorism measures and counterterrorism assets, and restrict access,” according to the GAO report. The GAO “audit” aims to clarify what went wrong, and to recommend appropriate policy for special event designations going forward. The GAO descriptions of the event designations and the web of entities involved points to the complexity surrounding how determinations are made:
- An NSSE is designated by the Secretary for Homeland Security and is managed in a working group that is co-chaired by the Secret Service, Federal Bureau of Investigation (FBI), and Federal Emergency Management Agency (FEMA). NSSE events are typically “a government or privately-sponsored event or gathering of national significance that receives special security provided by federal agencies.” Typical NSSE events in the past have included the State of the Union address, the Democratic and Republican National Conventions, and the Presidential Inauguration.
- A SEAR, on the other hand, “is a special event that is typically preplanned by a state or local jurisdiction or a private entity and is not designated as an NSSE.” It can also be requested by a federal agency for events such as those on Jan. 6 at the Capitol. The working group that administers SEAR is “comprised of more than 60 federal agencies, components, and offices, including DHS, FBI, and the National Counterterrorism Center.” Typical SEAR events have included the Super Bowl, the funeral of Supreme Court Justice Ruth Bader Ginsburg, and the National Cherry Blossom Festival.
To produce its report, GAO dug into the organizations responsible for coordinating these designations and their managing processes, interviewing DHS officials from the U.S. Secret Service and the DHS Special Events Program located in the Office of Operations Coordination as well as the U.S. Capitol Police, the National Park Service, and Washington, D.C.’s Homeland Security and Emergency Management Agency (D.C. HSEMA). The GAO also reviewed White House and DHS policies, and compared DHS decisions on designations for past events in the DC area.
GAO notes that “the presidential rally and joint session of Congress could have been considered for a designation as an NSSE or SEAR because, for example, they were large events with presidential or vice presidential attendance,” but that “according to DHS officials, the non permitted protest at the U.S. Capitol was not consistent with factors currently used for NSSE and SEAR designation.” The protest at the Capitol was not designated “even though there were other indications, such as social media posts, that additional security may have been needed at the Capitol Complex on January 6.”
The report says that the “agencies had varying rationales for not requesting an NSSE or SEAR designation for the events of January 6.” For instance, Park Service and D.C. Homeland Security and Emergency Management Agency officials said the rally at the Ellipse was a First Amendment demonstration, while DHS said the certification of the 2020 presidential election results “was considered routine congressional business.”
Ultimately, the GAO concludes that while DHS has established policies and procedures for designating certain events for security planning and preparation, “it is not clear whether they are adaptable to the current environment of emerging threats.” Indeed, the “view that the events on January 6, 2021 were routine business seems to ignore the context surrounding the November 2020 election, including potential emerging threats and protests.”
As a result, GAO issued a recommendation to the Secretary of Homeland Security that his agency should “consider whether additional factors, such as context of the events and surrounding circumstances in light of the current environment of emerging threats, are needed for designating NSSE events.” A letter in response to the GAO report from a DHS official says the agency does not concur with any of GAO’s three recommendations.
A key argument in the DHS response is that an NSSE special event designation “is a lengthy process and not something achieved in only a few days or weeks, even in the face of emergent intelligence or other information necessitating a quick response or adaptation to previously developed plans.” The threat profile for the Jan. 6 Electoral College certification likely changed dramatically on Dec. 19, 2020, when former President Donald Trump tweeted “Big protest in D.C. on January 6th. Be there, will be wild!” The Senate report said DHS “did not identify any of the social media posts calling for attacking the Capitol prior to January 6.” For its part, the FBI apparently did not act on warnings it received, including from the New York Police Department and the social media company Parler in December.
The GAO counters the DHS response on the time scale required for special event designations. The report refers to a past example in which the department demonstrated flexibility on a compressed schedule. “While the NSSE process usually takes months to implement, DHS adapted an NSSE in 2015 during the Papal visit when changes to the schedule were made, highlighting the potential for DHS to exercise flexibility in the process when needed,” the GAO states.
The report raises more fundamental questions as to whether the bureaucracies involved in the special designation process can be effective in the age of social media. At a hearing before the Senate Judiciary Committee in March, FBI Director Christopher Wray said, “I sometimes say terrorism today, and we saw it on [Jan. 6], moves at the speed of social media.” The ability to summon large groups in a short period of time to events that might otherwise have been considered routine suggests DHS should in fact reconsider the timescale of its response mechanisms.
Key to doing so will be to obtain clarity on how threat intelligence — including from social media — should be incorporated into the process in a manner that respects civil rights and freedom of expression. The GAO says this fall it will deliver a second report “on the information available through social media and other platforms indicating planned violence at the Capitol on January 6 and the extent to which law enforcement and intelligence agencies were aware of the information and acted upon it in accordance with policies and procedures,” and a third report focused “on the extent to which the policies and processes in place for sharing intelligence and threat related information among state, local, and federal partners were followed in sharing information and intelligence related to January 6 among stakeholders.”