During Secretary Napolitano’s first appearance before the House Homeland Security Committee, Congressman Charlie Dent (R-PA) performed an important service.  He pointed out that legalistic “one size fits all” homeland security requirements don’t make sense.  Rigid compliance enforced without exception and not viewed through the lens of common sense can sap the credibility of DHS in the eyes of the American public and at the same time fail to enhance security.

Congressman Dent referred to a letter he had sent to the Transportation Security Administration (TSA) about a possible waiver from the requirements of the Transportation Security Identification Credential (TWIC) for employees of a non-profit group which operates a mule driven canal boat as a tourist attraction in a public park near Easton, Pennsylvania.  Because the canal boat is required to be inspected by the Coast Guard for safety compliance, TSA TWIC requirements are also triggered.  So part-time canal boat operators who have no contact or access to critical transportation infrastructure are assessed a fee of more than $100 for a background investigation that will lead to them being issued a credential.

The January 2009 response from TSA to the Congressman was essentially that a waiver couldn’t be issues since there is no provision in the law for one.  To Secretary Napolitano’s credit she agreed at the hearing “to work with the Congressman” on the issue.

From TSA’s founding in the aftermath of 9/11 good intentions to protect the country have needed moderation to assure the right balance between security and freedom of movement is struck.  The trick is to issue security regulations and implement programs that affect millions of Americans but do so in a way that does not have the effect of stifling the American way of life.  In the mule driven canal boat instance, these are Americans who work in the maritime environment, who are regulated by the Coast Guard and are obviously not terrorist threats.

The question has always been and will always be “How much risk will we tolerate in order to support freedom of movement?”  Remember, we can guarantee there will never be another terrorist attack using airliners by putting them all on the ground.  Nobody finds that a particularly attractive solution, however.

So the need for waivers based on common sense risk analysis requires vigilant leaders at DHS who will take responsibility for inserting discretion in regulatory approaches.  As a new leadership team at DHS is assembled and confirmed, sensitivity to the responsibility to find and support the right balance between security and freedom of movement is a critical consideration.  DHS leaders need to guard against an overly legalistic approach lest they require credentials for mule-driven tour boat operators, confined to an antique canal, with no access to critical infrastructure.