HOMELAND SECURITY OVERVIEW & STATUTORY AUTHORITY

These class notes were composed by Dr. Tom O'Connor for his class on Homeland Security at NORTH CAROLINA WESLEYAN COLLEGE, original documents can be found here

HOMELAND SECURITY OVERVIEW & STATUTORY AUTHORITY
“Adapt or perish, now as ever, is nature's inexorable imperative" (H.G. Wells)

Almost everyone thinks they know what the concept of homeland security means. It's a familiar phrase based on an even more familiar term. However, there are some historical connotations that most people don't know. The concept of "homeland" emerged in the 17th century as a wartime term for the place where vanquished people are forced back to. The concept also refers to a place where people have some emotional attachment to. For example, during World War II, Winston Churchill used the term correctly when he said the allies would "drive Japan back to her homeland." The concept of homeland is different from the concept of fatherland (as with Nazi Germany) and the concept of motherland (as with Stalinist Russia) in that these last two terms refer to an ethnic country of origin while the homeland concept refers to a "regrouping" place or area of "last stand." In philosophical terms, the words fatherland and motherland are romantic concepts while the word homeland is an utilitarian concept. One admires or looks longingly backward at the peasant culture of one's fatherland or motherland; while one is always busy carrying out practical plans to aggressively secure the future of one's homeland.

As a concept, homeland security involves "active defense," but it is more than that, involving a kind of non-departmentalized intelligence that is always one step ahead of the cleverest enemies, and closely tied to the warning function although it makes use of many intelligence products.

What Kind of Intelligence does Homeland Security Require?

Since homeland security is directed toward the newfound problem of international terrorism at home, it therefore requires a blend of both foreign and domestic intelligence. However, the United States has always put walls up between the two, and perhaps for good reason. The tradition of posse comitatus prohibits the military, for example, from being involved in domestic law enforcement, a tradition stemming in part from the sad legacy of the military's role in the genocide of American Indian peoples during the "Wild West" days. Today, military intelligence is "departmentalized," which means MI units are simply "one voice" advocates for their service branch. The CIA is the only non-departmentalized, or "centralized" agency, but in 1975 with the Church Commission, a clear separation evolved between CIA and the FBI, a separation which sprang from the sordid history of Operation CHAOS and COINTELPRO in which joint operations produced scandals like (a) the shooting death of Black Panther Freddy Hampton; (b) the wiretapping of Martin Luther King's motel rooms; (c) the attempted assassination of Fidel Castro; (d) missing evidence in the assassination case of John F. Kennedy; and (e) the disappearance of union leader Jimmy Hoffa. Since 1975, whenever a CIA or NSA investigation implicates an American citizen, that's when the trail must end and intelligence agencies cease involvement. Police intelligence, which is supposed to pick up the ball, has been little more than tip-collecting and map-making, is largely arrest-oriented, and strongly turf-conscious. Today's modern terrorists respect neither the administrative lines of separation nor geographical boundaries of agencies. Likewise, America's private sector involvement has been limited. Even regulatory agencies like the FAA are simply not in the intelligence or law enforcement business. Homeland security requires intelligence and law enforcement to be everyone's business.

Warning intelligence is the goal, and is the kind of intelligence that does not simply emerge from the facts or consensus opinion, but is the ongoing ability to judge indications of an enemy's preparations in time for preemptive action to be taken. Warning is not a tangible product (Did you have warning?); it is not always 100% perfect; and a warning doesn't really exist until the recipient of the warning knows they have been warned (Grabo 2004). Warning requires rapid transit of intelligence collection, analysis, and dissemination, and as an analytic process is usually a synthesis or fusion of conventional approaches (e.g. intuitive probability estimates) as well as non-conventional approaches (e.g. Bayesian methods, game theory).

Despite the fact that the 9/11 attacks on the U.S. were, in part, due to a post-Cold War malaise (Hart 2003) and that modern homeland security is undeniably a reaction to postmodern terrorism, there are sufficient similarities between the Cold War and the current one to explore their common genesis. "National" security, not homeland security, was the only concern during the Cold War (1922-1993), and it was the National Security Act of 1947 which created the Defense Department, the National Security Council, and the CIA. National security, or "common defense" is a federal government responsibility, taken from the Preamble to the Constitution, as follows:

The link between national security and homeland security is subtle but important. National security, for many years, was maintained by the U.S. having a global presence of engagement and containment, helping friendly countries move toward democracy, and helping keep un-friendly countries in check. In many ways, homeland security is a kind of "blowback" from our national security efforts, since there are many who have resented the way America became the world's sole remaining superpower. Our enemies today use more secrecy and terrorism, and they are deliberately trying to undermine some of the symbolic things that our Constitution guarantees, like justice, tranquility, and liberty. The very freedoms that national security has worked so hard to earn are the very same vulnerabilities that homeland security has to work hard to protect.

The Constitution entrusts the states with responsibility for public health and safety. Emergency management as well as law enforcement has always been a "local" responsibility; i.e, decentralized. This derives from the American tradition of federalism, which is really more like fragmentation, since we have a plethora of municipal, county, state, and regional authorities at local (non-federal) levels. It remains to be seen whether homeland security may or may not ultimately result in the federalization of criminal justice, which has long been advocated by many in that discipline, as long no over-federalization (criminalization) of law occurs and "wartime" martial law doesn't sacrifice civil liberties (Rehnquist 2000; Cole, Dempsey & Goldberg 2002; Leone & Anrig 2003). Powers reserved to the states by the 10th Amendment (or state sovereign immunities) have produced some state initiatives which were exemplary, but many which were unextraordinary. According to most 10th Amendment jurisprudence, or at least the Holmesian version, all the 10th Amendment really means is that national power feeds off state power as national developments dictate, and that the reserved powers of the States are conditioned within this context of national power (Killenbeck 2001). There are other interpretations of the 10th Amendment; e.g., as preventing tyranny of centralized government; and there are those who say counterrorism is a local responsibility on Constitutional grounds (McDonnell 2004).

Long before the federal government ever thought about getting into the homeland security business, there were entities and organizations at the state and local levels which were carrying out very similar emergency management functions. Bullock et. al. (2005) trace it back to a Congressional Act in 1803 which guaranteed federal financial assistance to a New Hampshire town if that town was unable to deal with the disaster on its own. That pattern of risk assurance with the federal government having a secondary, back-up role, and with local governments having a primary role continued throughout the 20th Century -- and was the basis behind many well-known initiatives which represented national power feeding off state power:

There have been several instances where local and state entities did a good job of handling earthquake, hurricane, and storm disasters, but most people point to the big one -- nuclear attack -- as the context in which the field of emergency preparedness really came into its own. Nuclear war preparations have always been the one thing uniting all levels of government in emergency management planning. During the 1950s, that context was when most people had another name for homeland security, and that was CIVIL DEFENSE. However, civil defense is somewhat different than homeland security, and homeland defense is different than homeland security. With civil defense, the emphasis is on building shelters and outlasting the enemy attack through survival. The American civil defense experience did, however, involve many citizens in security awareness. In those days, citizens couldn't always count on the government with civil defense; you digged your shelter yourself and figured out how to survive. All the government might be able to do is give you some warning and set off the sirens. There's some similarity to that with some shelter-in-place requirements for today's homeland security. Nuclear safety and security also reappeared as a central element in planning with the 1979 accident at Pennsylvania's Three Mile Island. By coincidence, the accident there, which involved a partial core meltdown of a nuclear reactor, occurred just days after release of a movie called The China Syndrome in theatres. FEMA was created by executive order of Jimmy Carter that same year.

Homeland security goes beyond civil defense. It is more active, focusing less upon ultimate survival and focusing more upon preemptive mitigation of threat by actually preventing an attack in the first place. A homeland security effort may involve policy analysis, reorganization, diplomacy, intelligence gathering, military build-up, or whatever it takes to proactively defend the homeland. Most importantly, it means "tightening up" the institutions and processes (infrastructure) in a coordinated effort to make them "relatively invulnerable." This idea of building for invulnerability was for many years part of the "recovery" aspect of emergency management. One waited until after they were attacked to recover or rebuild in a safer or less vulnerable fashion. Homeland security involves such rebuilding (i.e., taking terrorism seriously) before anything is attacked or destroyed. Emergency preparedness usually refers to actions taken to reduce the impact of disasters when they are forecast or imminent (Alexander 2002), but homeland security is more like an extension of the concept of "mitigation" in emergency management, which involves all actions (structural and non-structural) designed to reduce the likelihood and impact of future disasters. Prevention is never 100% foolproof, but it can be argued that relative invulnerability, or trying to be 100% air-tight, is the ideal goal. 99.9% protection is not enough if there are still tiny cracks in the system that terrorists can slip through and inflict massive damage. 9/11 shattered a false sense or myth of invulnerability, and post 9/11 homeland security aims to establish a true sense of this, much like the promise of making "nuclear weapons obsolete" with the Strategic Defense Initiative.

It is important to distinguish homeland security from related terms like national security, anti-terrorism, disaster preparedness, hazard management, emergency services, crime prevention, strategic coordination, threat mitigation, and risk assessment. Homeland security consists of all these things, and more. It is a broad concept relevant to safety and security, to be sure, but at its heart, the concept must include the idea of balance or balancing security and civil liberties -- making citizens as safe as possible while at the same time maintaining the sovereign principles of liberty and freedom that citizens have come to enjoy. Safety with freedom is the goal. The field of criminal justice has taught much about the tradeoff between those goals. We know, for example, that perception of safety, not safety itself, is what matters, and at the citizen level, homeland security may only be something that people engage in when their government cannot guarantee more than "reasonable" protection. Most people want their government to do it all for them, so that they can go on believing that NOT being security-conscious is the same as freedom. Other people are perhaps too security-conscious and will only feel slightly safer from day to day, no matter what. To achieve the higher goal of relative invulnerability requires a higher degree of trust, cooperation and accurate awareness from citizens, and all this must be consistent, not based on windows of opportunity that arise from the media fallout of post-disaster news coverage or other media-driven panics and frenzies. It requires getting serious about terrorism as well as getting serious about fear, or in other words, homeland security from the citizen's perspective.

There are sectors of society that the government cannot be constantly watching, so-called "weak spots" or soft targets, and it's only private citizens or businesses who can watch those areas. 90% of critical infrastructure is owned and operated by the private sector. A government-only homeland security model would be extraordinarily ineffective. A government is only able to work on its mistakes, failures, and "blind spots," and try to prevent those rare, catastrophic, unforeseen events that "slip through the cracks." To build a government-only model of homeland security would be a mistake. A government that promises it will carry out all necessary homeland security functions is only guaranteeing that it will protect citizens from "extraordinary" hazards, i.e., that it will do its part to improve detection of "unforeseeable" forms of attack, and most of all, help manage the aftermath or recovery for anything that "slips through." That pretty much encapsulates what a government can be reasonably expected to do in a postmodern terrorist environment, and it's different from the prediction and forecasting of natural hazards. Obviously, homeland security calls for doing some things differently, and that's why government is trying to restructure or reorganize itself, and more actively involve the private sector. We need to learn to share intelligence with ourselves. Anything that opens up the flow of information between government and non-government entities would assist with development of a coordinated government-plus model of homeland security. Such a model can accomplish many more diverse missions than are even possible to conceive of today. Homeland security is a concept ripe with potential and promise, and its ongoing development will surely change the world we live in.

Several definitions exist, but they are hard to find due to a shortage of publications on the subject. Most people refer to the third definition given below, since that is the official government definition, but note the first and last definitions, since the first one, which is technically a definition of homeland defense, came out a year before the events of 9/11, and the last one, in 2004, signifies that definitional debates are far from over. A sampling of various definitions is as follows:

Definitions of Homeland Security

America's global leadership relies upon safety of the American homeland, the preservation of a balance of power, and the stability of nation-states relative to terrorists, organized crime, and other 'non-state' actors. American peace must not become vulnerable to rogue powers with inexpensive arsenals, nuclear warheads or other weapons of mass destruction. We cannot allow such entities to undermine American leadership, intimidate American allies or threaten the American homeland itself. (Kagan, Schmitt & Donnelly 2000)

The prevention, deterrence, and preemption of, and defense against, aggression targeted at U.S. territory, sovereignty, population, and infrastructure as well as the management of the consequences of such aggression and other domestic emergencies. (Dobbs 2001)

A concerted national effort to prevent terrorist attacks within the United States, reduce America's vulnerability to terrorism, and minimize the damage and recover from attacks that do occur. (President Bush 2002 - and the federal government definition of homeland security)

Homeland security is, at its core, about coordination, coordination between functions and between governments, developing new tools, and effectively weaving together the nation's experts and resources to connect the dots; a matter of doing some new things, many old things much better, and some old things differently, all in an environment that can punish any mistakes severely. (Kettl 2004)

Two sides -- basically involving the states and the federal government -- have emerged on opposing sides of a debate over the "meaning" of homeland security, and the most important consequence of that debate has been controversy over funding and how money is spent. On the one side, there are those who see homeland security as a local issue, as a matter of better equipping and training first responders, and as a matter of letting loose the emergency management planners who "know best." Many states have looked upon homeland security as nothing more than incorporating counterterrorism or antiterrorism into existing emergency plans as part of an "all-hazard strategy." Other states and municipalities have seen fit to tie homeland security into some sort of "situational awareness" component of community policing, as if the "eyes and ears" aspect of community policing were the answer. Emergency management planners reason that since industrial accidents and terrorist bombs can both cause widespread damage, building capacity for the former can help solve the latter. We might call this, and all related ideas, the bottom-up approach to homeland security.

On the other side are federal officials and centralization advocates who say that what's needed is "a seamless, integrated system that protects all citizens." Local politics and bureaucratic rivalries need to give way to new realities, such as the need for meaningful mutual assistance pacts that are a little more well-planned than one city saying to another after a disaster: "Sure, borrow anything we have that you need." Citizen protection should not depend upon where they live. It is a serious error to think that homeland security is only a big-city problem. Rural areas may be just as important, and sometimes more important than urban areas. Advocates of centralized planning tend to think along the same lines as military planners and conservative think tank experts who have long expounded the virtues of "homeland defense" and "domestic security." In fact, the Dark Winter exercise of June 22-23, 2001 pointed out the limitations of state government in handling a hypothetical smallpox attack. There is a real need for federal standards, mandates, and best practices, and we might call ideas along these lines the top-down approach to homeland security.

Emergency management is a discipline that deals with risk and disaster and is part of a larger field of study known as public health and safety. Emergency preparedness is that part of emergency management which attempts to minimize the loss of life and property by practicing hazard management. For several decades, the U.S. has had a national emergency management "system" consisting of thousands of organizations, large and small, that were engaged in disaster-related activities. This network, or system, has always been multijurisdictional and multiorganizational, consisting of "first responders" who work for state or local government in public health and safety professions like policing and firefighting. When a disaster exceeds the capabilities of these first responders, additional resources are brought to bear from adjacent jurisdictions, nearby regions, and the federal government. Those additional resources typically include the following:

This is an incomplete list, as it would be near-impossible to list all the groups and individuals who come out to support their local community in time of disaster. The point is, that a complex "network" exists, albeit one with fragmented authority that is hard to coordinate. Indeed, how does anyone coordinate multiorganizational, multisector, and intergovernmental operations? That, however, is the job of emergency management, and although it would be nice to think that everything is well-organized through some command-and-control system, the reality is that most operations are "loosely structured, consensually oriented, and dependent on trust and commitment" (Waugh & Sylves 2004).

Disaster management requires putting many organized groups, unorganized groups, skilled people, and unskilled people to work efficiently. Some groups may be at the scene for proprietary reasons, e.g., insurance company representatives. Other groups may have illegitimate reasons for being there; e.g. looting or price gouging. Funeral homes may have to be mobilized to take in dead bodies. Businesses that sell essential supplies will have to stay open. A lot of unskilled people might be put to work at hazardous debris removal. It all has to be organized somehow.

Waugh (1993) has outlined the central dilemma as a choice between "command" versus "coordination," and coordination (from the bottom-up) has always been the more elegant and preferred solution for state and local emergency managers. Homeland security, by contrast, is a command-and-control system (from the top-down). Homeland security imposes certain requirements (e.g., secrecy, security clearances, formal partnerships, formal memoranda of understanding) that complicate, if not impede, the flexibility of an informal "system" which works on the basis of informal agreements, trust, cooperation, and sharing. In order to evolve, the bottom-up coordination approach of emergency management must find a way to co-exist and grow along with the top-down command approach of homeland security.

Alexander (2002) has outlined some of the basic choices that must be made at the beginning of any emergency planning. First of all, one must decide between single-hazard or multiple-hazard (all-hazard) planning. Single-hazard planning is cheaper and gets results quicker than all-hazard planning, but the latter is preferable for its greater levels of protection and economies of scale. Secondly, one must plan for the peace as well as the war. Peacetime planning involves more efforts toward preparation and training. Wartime planning generally involves more efforts toward scientific prediction and alert procedures. Thirdly, the backbone of any emergency or disaster planning is command structure. For command, a decision must be made between the more traditional hierarchical structure (or chain-of-command) or the newer and more avant garde structure known as incident command.

Incident command, as a concept, was developed in the early 1970s after a series of major wildfires in Southern California resulted in a number of recurring problems: nonstandard terminology, non-interoperable communications, unmanageable span of control, and lack of capability to expand or contract operations as required by the situation. Since 9/11, incident command among first responders and the participation of the military in civil affairs have become commonplace items, although the military tends to still use the traditional chain-of-command system. Getting the military and non-military to cooperate and not work at cross-purposes can be a major challenge in emergency response. However, there are many instances of proven success with incident command, and in fact, it is required by law to be used in certain fire, police, HAZMAT, and pollution incidents. Incident command can be used for all types of incidents regardless of size, and with incident command, the advantage is flexibility and the ability to mutate or expand to meet the requirements of the situation.

What is Incident Command?

An incident command system (ICS) exists when the leader of the first emergency response team to reach the scene of an incident assumes command. Usually, this is a fire chief. This person directs operations from the back of an emergency vehicle and also stays in constant contact with base (a fire station, dispatch room, or emergency operations center). They are the only ones who should call for reinforcements, along with dispatchers. Once the incident response exceeds the incident commander's span of control (six or seven operations), it is time to form separate task forces and delegate command. The incident commander cedes authority once a more senior chief arrives, if they are needed elsewhere, or if exhaustion calls for rest. The following is the basic structure of incident command and its five components.

COMMAND - Sets priorities and objectives and is responsible for overall command of the incident.
OPERATIONS - Has responsibility for all tactical operations necessary to carry out the plan.
PLANNING - Responsible for the collection, evaluation, and dissemination of information concerning incident development as well as the status of all available resources.
LOGISTICS - Responsible for providing the necessary support (facilities, services, and materials) to meet incident needs.
FINANCE - Responsible for monitoring and documenting all costs. Provides the necessary financial support related to the incident.

The jurisdiction problem as well as many other legal problems are common to both emergency management and homeland security. Some agencies, either by statutory authority and/or by custom, have apportioned emergency powers to themselves for particular places and times, so divisions of responsibility need to be clear. However, along with the immediate situation of a disaster come laws, ordinances, protocols, decrees, norms, and memoranda of understanding. Emergencies tend to elevate even the smallest of these, but several general duties are of paramount importance in the contexts of law, legal ethics, and civil liability:

Let's briefly discuss some of the above considerations. One example might involve the issue of less-than-qualified volunteers and their legal status as members of nonprofits, independent contractors, or individuals. Other issues might require consultation with an attorney specialized in hazard legislation. Perhaps the most important issue, however, is the possibility of harm (not care) toward women, children, and minorities. Chaos in wartime tends to bring harm these populations, and institutional discrimination is often an unintended byproduct of big bureaucracy. Homeland security should never allow a situation, no matter how bad, become an occasion for insensitivity to women's rights and/or ethnic/racial discrimination. Multicultural safeguards should be built into homeland security plans.

There are two major pieces of legislation which constitute the statutes that provide homeland security with its authority -- the U.S.A. Patriot Act of 2001 and the Homeland Security Act of 2002. In addition to these, there are important other presidential directives (PD), homeland security presidential directives (HSPD), executive orders (EO), and public laws (PL). Antiterrorism Law is discussed elsewhere, so this section deals primarily with settled homeland security law. The law in this regard has many new developments, and a few places to keep track of it all are the Center for State Homeland Security, Jurist, and OMB Watch. A chronology of all the presidential directives and executive orders issued by all the Presidents is maintained at the FAS website. The following is a list of some significant actions in chronological order:

By way of quick observation, the most recent piece of legislation (S.2774) may very well need amendment after awhile, since the new National Intelligence Director may not have sufficient authority over many intelligence agencies -- military agencies, in particular. Title 10 of the U.S. Code reserves certain intelligence jurisdictions to the Pentagon, as does DoD Directive 5100.20, both of which cover the Defense Intelligence Agency (its Army, Navy, Air Force, and Marine sub-branches), the National Reconnaissance Office (which controls all spy satellites), the National Imagery and Mapping Agency (now called the National Geospatial-Intelligence Agency, which selects the routes for satellites), and, most critically, the National Security Agency (the largest U.S. intelligence agency which monitors all global communications). It remains to be seen if a new "intelligence czar" will be capable of making all the agencies in the intelligence community more "agile" in assisting with homeland security investigations.

PRINTED RESOURCES
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