HOMELAND DEFENSE AND HOMELAND SECURITY
"The best way to avoid danger is to be in a capacity to withstand it" (James Madison)
Only under certain circumstances is the military allowed to be involved in homeland security. Military intervention on the homefront is called homeland defense, and it represents something which is a main part of national security but should never be confused with homeland security. A homefront always contains key areas of vulnerability and the rules of engagement are almost always uncertain. Domestic security, "domestic ops," defense support of civil authorities (DSCA), or CONUS (for Continental US) operations, as well as any number of other assorted terms for homefront security, are all part of a relatively imperfect and constitutionally unsettled tradecraft characterized by numerous controversies, debates, and a somewhat sordid history. Every effort, to be sure, is made to operate within constitutional frameworks since the military regards it as the ultimate taboo to be involved in operations against domestic citizens. The history of this subject is indeed a story worth telling, but far more important is understanding current policy practice on the role of national security actors (like the military) in domestic affairs.
Following the attacks of 9/11, the executive branch made a policy decision to distinguish between homeland security and homeland defense. Homeland security would involve a "concerted national effort to prevent terrorist attacks, reduce America's vulnerability, and minimize the damage and recover from attacks that do occur." Homeland defense would involve the "protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President." Condron (2008) has said this is a blurry distinction because defense and security are understood to be synonymous, and applying two synonymous terms to two different concepts can lead to confusion. Homeland security is understood to conceptualize security as prevention and repair, whereas the concept of defense has traditionally entailed a wider range of options (e.g., both active and defensive operations). Blurring the distinction even more are growing exceptions to the Posse Comitatus Act (a law passed in 1878 in response to the alleged excesses of federal troops in the South during the Reconstruction Era). This law restricts (but does not prohibit) federal military assets from performing traditional law enforcement functions. According to Porto (1997), the Posse Comitatus Act would likely be violated if military personnel "assisted in civilian law enforcement by making arrests, searching persons and/or property, seizing evidence, investigating crimes, interviewing witnesses, pursuing escaped civilian prisoners, and searching an area for suspects."
Now that the limitations on the military are understood, it is time to reconsider the relative contributions of homeland defense to homeland security. The June 2005 document by the U.S. Dept. of Defense entitled Strategy on Homeland Defense and Civil Support (pdf) lists the following priority objectives:
Achieve maximum awareness of potential threats. Together with the Intelligence Community and civil authorities, DoD works to obtain and promptly exploit all actionable information needed to protect the United States. Timely and actionable intelligence, together with early warning, is the most critical enabler to protecting the United States at a safe distance.
Deter, intercept and defeat threats at a safe distance. The Department of Defense will actively work to deter adversaries from attacking the US homeland. Through our deterrent posture and capabilities, we will convince adversaries that threats to the US homeland risk unacceptable counteraction by the United States. Should deterrence fail, we will seek to intercept and defeat threats at a safe distance from the United States. When directed by the President or the Secretary of Defense, we will also defeat direct threats within US airspace and on US territory. In all cases, the Department of Defense cooperates closely with its domestic and international partners and acts in accordance with applicable laws.
Achieve mission assurance. The Department of Defense performs assigned duties even under attack or after disruption. We achieve mission assurance through force protection, ensuring the security of defense critical infrastructure, and executing defense crisis management and continuity of operations (COOP).
Support civil authorities in minimizing the damage and recovering from domestic chemical, biological, radiological, nuclear, or high-yield explosive (CBRNE) mass casualty attacks. The Department of Defense will be prepared to provide forces and capabilities in support of domestic CBRNE consequence management, with an emphasis on preparing for multiple, simultaneous mass casualty incidents. DoD’s responses will be planned, practiced, and carefully integrated into the national response. With the exception of a dedicated command and control element (currently the Joint Task Force Civil Support) and the Army National Guard Weapons of Mass Destruction (WMD) Civil Support Teams, DoD will rely on dual capable forces for the domestic consequence management mission. These dual capable forces must be trained, equipped, and ready to provide timely assistance to civil authorities in times of domestic CBRNE catastrophes, programming for this capability when directed.
Improve national and international capabilities for homeland defense and homeland security. The Department of Defense is learning from the experiences of domestic and international partners and sharing expertise with Federal, state, local, and tribal authorities, the private sector, and US allies and friends abroad. By sharing expertise, we improve the ability of the Department of Defense to carry out an active, layered defense.
For example, during the late 1960s, the Pentagon compiled dossiers on more than 100,000 politically active Americans in an effort to quell civil rights and anti-war protestors using Army infiltrators against a number of suspected "un-American" organizations (Pyle 1986). Citizens who felt their First Amendment right to freedom of expression was violated sued, claiming a "chilling effect" occurred on the exercise of their freedom. However, the Supreme Court in Laird v. Tatum (1972) dismissed the claim, saying a fear over the government's future use of such dossiers was too speculative, did not constitute a present threat, and was therefore not ripe. In the absence of Supreme Court action, Congress intervened to protect citizen rights and passed the Privacy Act of 1974 along with the Foreign Intelligence Surveillance Act (FISA) of 1978. In many ways, the Privacy Act of 1974 was simply an attempt to make it easier for private citizens to access their files under the Freedom of Information Act (FOIA) which had been passed back in 1966. However, even with this increased ease of access, doubts exist about the effectiveness of the Privacy Act of 1974 in safeguarding personal privacy, mainly because there is a "law enforcement activity exemption" (Becker 2000), which is shown in the excerpt below:
The Law Enforcement Activity Exemption to the Privacy Act of 1974
|Contained within this Act is a provision that prohibits government from gathering and retaining information on the religious activities of American citizens. Also, Section 552a(e)(7) of the Act provides, in pertinent part: "Each agency that maintains a system of records shall ... maintain no record describing how any individual exercises rights guaranteed by the First Amendment ... unless pertinent to and within the scope of an authorized law enforcement activity."|
The Foreign Intelligence Surveillance Act (FISA) of 1978, in many ways, simply reasserted a separation between foreign intelligence collection and domestic intelligence collection. More about FISA is contained in other places on my website, so we won't say too much about it here except that it provides for the domestic clandestine surveillance of espionage suspects, including electronic intercepts, communication taps, and break-ins to plant wiretaps. The executive branch initiates a FISA request, and a secure district court (usually in the Washington DC area) holds a closed session to decide if the government should have the authority to conduct such activity. This closed session is referred to as the Foreign Intelligence Surveillance Court, or FISC. Whenever national security demands a domestic intercept, FISA is usually relied upon, and on average, about 600-1000 warrants are approved every year. FISA powers were expanded by Patriot Act powers which are not really discussed much in this lecture (instead, the reader is referred to Patriot Debates or other resources).
The Posse Comitatus Act of 1878 is far more important to talk about. It involves the separation of military and civilian realms secured by the Constitution. Apart from the Privacy Act of 1974, the only thing separating the two realms is Posse Comitatus, but even the protections provided by this are doubtful since Posse Comitatus only bans using the military to "execute the law," such as when a federal agent tries to commandeer military troops to help enforce the law (the founding father's intent), or (in the present tense) such as interdicting vehicles, vessels, and aircraft, conducting surveillance, searches, pursuit and seizures, or making arrests on behalf of civilian law enforcement authorities. All these things are strictly prohibited. However, Posse Comitatus, like the Privacy Act, does not necessarily prohibit investigations of civilians by the military. There are a number of specific exemptions beyond the general exemptions that the Act does not apply to the Coast Guard or the National Guard (when the Guard is acting in its active state capacity, despite a few state prohibitions to the contrary). Those specific exemptions appear below:
Exemptions to the Posse Comitatus Act of 1878
| 1. The
Insurrection Act (Title 10 USC, Sections 331-335) allows the
president to use U.S. military personnel at the request of a state
legislature or governor to suppress insurrections, and also to use
federal troops to enforce federal laws when rebellion against the
authority of the U.S. makes it impracticable to enforce the laws of
the U.S. It was used in 1957 to desegregate schools and in 1992 to
put down the Rodney King riots. The determination of what
constitutes an insurrection is totally within the President's
discretion. The Act allows action against any conspiracy to commit
insurrection as well as any opposition to law or obstruction of
2. Assistance in the case of crimes involving nuclear materials (Title 18 USC, Section 831) whereby DoD personnel are permitted to assist the Justice Department in enforcing prohibitions regarding nuclear materials, when the attorney general and the secretary of defense jointly determine that an “emergency situation” exists which poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. Again, action can be taken against conspiracies, and if incidental to enforcement of this section, the military may engage in arrests, searches and seizures, and direct intelligence collection as necessary.
3. Emergency situations involving chemical or biological weapons of mass destruction (Title 10 USC, Section 382) whereby the attorney general and the secretary of defense jointly determine that an “emergency situation” exists that poses a serious threat to U.S. interests and is beyond the capability of civilian law enforcement agencies. Again, action can be taken against conspiracies, and if law enforcement is not capable, the military may engage in arrests, searches and seizures, and direct intelligence collection as necessary.
4. The Stafford Act (42 USC, Sections 5121-5206) authorizes the federal government to assist state and local governments to alleviate suffering and damage caused by "major disasters" such as a natural catastrophe or regardless of cause, any fire, flood, or explosion. The Act also authorizes federal supplementary assistance in "emergencies" determined by the President, where state and local capabilities are inadequate, or where a subject area exists, under the Constitution or laws of the US where the US should exercise exclusive or preeminent responsibility and authority.
5. DOD Directive 3025.15 (Military Assistance to Civil Authorities) allows "other" assistance to be evaluated on a request-by-request basis according to six criteria: legality, lethality, risk, cost, appropriateness, and readiness. The typical "other" assistance provided is usually technical support.
|Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." -- Title 18, U.S. Code, Section 1385.|
Posse Comitatus exemptions are important to understand in practice, not just in theory. The classic case law on the subject is Bissonette v. Haig (1986), also known as the "incident at Wounded Knee." The following brief is provided for understanding:
Bissonette v. Haig 776 F. 2d 1384, aff’d 800 F. 2d 812 (8th Cir. 1986),aff’d, 485 US 264 (1988)
| FACTS IN THE CASE
An armed group of Indians occupied the village of Wounded Knee, SD on the Pine Ridge Reservation in February of 1973. In response, federal law enforcement agencies, including the FBI, Marshals Service, and the Bureau of Indian Affairs Police immediately blockaded the village, closing all entry and exit roads. They were assisted by the Army, the South Dakota and Nebraska National Guards, and the US Air Force – the military providing surveillance, aerial reconnaissance, and equipment. The standoff ended ten weeks later when the armed Indians surrendering to authorities; two American Indians were killed and one US Marshal was severely wounded.
ISSUES IN THE CASE
1. Unreasonable seizure and confinement by the military contrary to the 4th Amendment and plaintiffs’ rights to unrestricted movement and travel
2. Unreasonable search by units of the military through ground and air surveillance
3. Assault, deprivation of life (in one instance), and deprivation of property contrary to the 5th and 8th Amendments
Underlying these constitutional allegations is the Posse Comitatus Act of 1878, 18 USC §1385, which states in pertinent part that “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined [not more than $10,000] or imprisoned not more than two years, or both. Posse Comitatus means literally “the power or the authority of the county” – however, it is generally understood as the power by a sheriff to enforce the law and preserve the peace by calling the assistance of either military or federal authorities when necessary.
The first two claims contend that unreasonable search and seizures were performed by the military contrary to the 4th Amendment. Because the Court long recognizes (in caselaw, Constitutional history, and Congressional Acts) that the use of the military should be limited in enforcing civil law, a reasonable test, or balancing test, must be considered. That is, a test that balances the interests of the individuals against that of the government.
The Court identifies two primary governmental interests in supporting military assistance to civilian law enforcement: (1) “maintain order in times of domestic violence and rebellion”; and (2) “improve efficiency of civilian law enforcement by giving it the benefit of military technologies, equipment, information, and personnel.” After a review of several Congressional Acts, the Court was satisfied that Congress had set reasonable limits on the use of the military into civilian life consistent with the goals set-forth above and the underlying Constitutional principles, except when expressly authorized.
Therefore, the 4th Amendment issue at bar hinges upon whether the military activity in connection with the blockade at Wounded Knee violated the express language or limits set-forth in the Posse Comitatus Act. “If the use of military personnel is both unauthorized by any statute, and contrary to a specific criminal prohibition, and if citizens are seized and searched by military means in such a case, we have no hesitation in declaring that such searches and seizures are constitutionally unreasonable.”
However, the Court, relying upon an earlier Wounded Knee case, doubted whether the military activity and involvement at bar was “unreasonable” because, effectively, no justiciable controversy would exist unless the military involvement “actually regulate[d], forbid, or compel[ed] some conduct on the part of those claiming relief… the mere threat of some future injury would be insufficient.” Therefore, to qualify as a violation of the Act, one must find in the affirmative that military power exercised was done so in a regulatory, proscriptive, or compulsory manner. The Court, relying on this reasoning, allowed the unreasonable seizure and confinement claim to survive a Motion to Dismiss, but rejected the unreasonable search claim on the same grounds set-forth above – that is, they were not regulatory, proscriptive, or compulsory.
Thirdly, as to the due process allegation, the Court summarily dismissed this claim.
ANALYSIS OF THE CASE
The broader and more important question really is whether the military should ever be used in civilian law enforcement contexts. Courts do not take lightly military involvement in civilian affairs, as Bissonette even in implementing a reasonable/ balancing test of sorts, stressed emphatically that the use of military force for domestic purposes, absent some express congressional authorization, is eyed with “a long tradition of suspicion and hostility.” Nevertheless, the simple answer to this broader question in the first sentence is ultimately “yes.”
Military prowess, technology and expertise in handling certain crisis situations cannot be overstated. But, because such personnel are not typically trained (to the extent of civilian law enforcement anyhow) on 4th and 5th Amendment guarantees, their involvement may “chill the exercise of fundamental rights.” Therefore, Congress, understanding this delicate balance (that is, the necessity to quell civil unrest or maintain order – versus – individual rights and a presumption that the military should not enforce civilian laws) enacted certain exceptions to the Posse Comitatus Act as they are set forth in various sections of the United States Code and elsewhere.
Four years after 9/11 (with Hurricane Katrina in 2005), the Pentagon's homeland security apparatus spectacularly failed the opportunity to adequately support state governors and the Department of Homeland Security, or at least demonstrate that national "homeland defense" meant something more than simply forming a Task Force and/or sending ships that take a week to get there. True, the system was never designed to get masses of aid into place within 24 hours, but with Katrina [see Wikipedia Entry on Effects of Hurricane Katrina on New Orleans], there could have been better coordination between Northcom, the Guard, DHS, and other agencies). It is important to continually reassess the flexibility and adaptability of any modern defense/homeland security apparatus. In certain areas, such as critical infrastructure protection, the US may be better organized (perhaps because of private sector involvement), but in other areas like emergency planning, the US may be unprepared. Little emphasis seems to be placed on the role of the military in responding to a natural disaster (at least one that isn't related to WMD in some way). Posse Comitatus notwithstanding, the President has the legal authority to order the National Guard to disaster areas himself, as was done on 9/11 under a deployment for national security protection. Presidents of both parties traditionally defer to governors to deploy their own National Guardsmen and request help from other states when it comes to natural disasters. In addition to Guard help, the federal government could activate (which it did not in Katrina), a major air support plan under a pre-existing contract with airlines. This program, called Civilian Reserve Air Fleet (CRAF), lets the government quickly put private cargo and passenger planes into service. CRAF has only been activated twice, once for the Persian Gulf War and again for the Iraq war.
THE ROLE OF THE MILITARY IN HOMELAND DEFENSE
The Gilmore Commission studied America's readiness to deal with terrorism from 1999-2003 and made 144 recommendations, with 125 (over 85%) being adopted by Congress and various government agencies. One of its recommendations reads as follows: "at times, preparedness will require support from the military, both active and reserve." It has also long been recognized that sufficient constitutional and legal authority exist for the President to use military forces inside our borders. However, as soon as one starts talking about military involvement, one runs into the problem of conceptualizing the difference between homeland security and homeland defense. Homeland defense is the preferred term for when the military is involved in homeland security. According to Spaulding (2005), DOD defines homeland security as "the prevention, preemption, deterrence of, and defense against aggression targeted at US territory, sovereignty, the domestic population, and infrastructure as well as the management of the consequences of such aggression and other domestic emergencies." Homeland defense, which DOD sees as its primary homeland security role, is defined as "the protection of US territory, the domestic population, and critical infrastructure against military attacks emanating from outside the US."
Prior to 9/11, the DOD's focus was primarily on consequence management, which meant assisting civilian agencies in the wake of disaster. After 9/11, and because of the air defense failure involving a breakdown in communication between NORAD and the FAA, the DOD focus shifted somewhat with creation of a new combatant command called NORTHCOM (www.northcom.mil) in 2002 (although it should be noted the shift toward CINCs or unified commands took place back in 1986 with the Goldwater-Nichols reorganization. NORTHCOM is tasked with the land, aerospace, and maritime defense of the continental United States, Alaska, Canada, Mexico, Puerto Rico, the U.S. Virgin Islands, parts of the Caribbean, and Atlantic and Pacific coastal waters (out to 500 miles). About 400 times a year, military officials at Peterson Air Force Base in Colorado deploy fighter jets to intercept an aircraft somewhere over the United States, but more often than not, these "targets of interest" turn out to be lost or misguided pilots. NORTHCOM's multiple mandate includes both homeland defense and civil support (see Defense Science Board Report on DOD Roles and Missions in Homeland Security pdf; and also DOD Directive 5240.1-R and 5105.67). It also "fuses" intelligence and law enforcement information via data-mining capability similar to some other post-9/11 institutions like IAIP and TTIC, explained below:
Homeland Defense Post-9/11 Institutions Besides NORTHCOM
IAIP (Information Analysis and Infrastructure Protection) -- consists of all DHS capabilities to identify and assess current and future threats, mapped to vulnerabilities, with the purpose of producing timely, actionable warning, prevention, and protective action. The directorate represents the DHS part in the IC (intelligence community) of agencies, and will primarily be a consumer of CIA, NSA, FBI, military, and private source intelligence products, but will also issue sector-specific advisories, warnings, guidelines, and best practices. Personnel size (end strength) is approximately 200 analysts. The IAIP approach is intended to provide actionable intelligence, which is a military intelligence term for precise and timely assessment of the posture, or indications, of an enemy reflecting their preparations for hostilities or battle. A time honored military precept holds that intelligence should not estimate the intentions of an adversary, but only their capabilities (Grabo 2002). Actionable intelligence is intelligence that is suitable for use, and a useful analogy is criminal justice. With this analogy, think of "actionable" as the evidentiary standard necessary to support legal action. However, actionable intelligence is unlike criminal justice in the sense that one does not have to wait until the last piece of the puzzle is in place. It is extremely dangerous to equate “actionable intelligence” with “complete intelligence" or to equate intelligence with evidence. Actionable intelligence relies upon situational awareness.
|TTIC -- (Terrorist Threat Integration Center) -- consists of 5 equal partners (CIA, FBI, DHS, DOD, DOS) to fuse & analyze all-source information relating to terrorism; conducts no collection activities of its own, but will have access to all intelligence products, from raw to finished, available anywhere in the U.S. government. TTIC analysts only produce analysis, and they play no role in the support of counterterrorism operations. TTIC produces the daily threat matrix, the daily situation report, and community threat advisories, all of which were formerly produced by CIA. TTIC hopes to extend the dissemination of intelligence products to the "sensitive but unclassified" level with spot commentaries and other products. TTIC is intended to provide one-stop shopping for terrorist threats. Personnel size (end strength) is approximately 300 analysts. The TTIC's all-source fusion intelligence products consist of information collected by other agencies, but overlooked or discounted in some way, and include open source information which is freely available. It has access to some 24 information systems and databases spanning the intelligence, law enforcement, homeland security, diplomatic, and military communities. The TTIC tracks over 100,000 known or suspected terrorists worldwide. The TTIC uses a team approach which attempts to avoid the problem of who is a consumer and who is a producer of intelligence. TTIC's primary means of communication with its customers is through TTIC Online, perhaps the world's most top-secret website. TTIC also hopes to reduce the number of documents marked "ORCON" which stands for Originator Control, and is a kind of copyright or intellectual property procedure used internally by the intelligence community. ORCON and other classification/distribution controls cause serious problems with information sharing since if a document was produced by the CIA (the originator) but consumed by the FBI, and the FBI wants to share it with state and local law enforcement, the FBI must get permission from the originator before dissemination occurs. Other than redaction or blotting out sections of a document, another solution is to use so-called "tear lines” where classified documents are broken into sections. Some sections contain summary information and others contain detailed information such as sources and methods. The sections containing summary information can be disseminated to those with proper clearances. The sections containing sources and methods cannot be disseminated.|
EMERGENCY PREPAREDNESS AND NATIONAL SECURITY
What used to be called "civil defense" is now called "emergency preparedness" which involves a broad number of planning and management activities, including: (1) threat and risk assessment; (2) the timely availability of resources to civil-military authorities; and (3) continuity of operations. Each of these functions will be explained in the paragraphs below (with quarantine powers discussed in-between). Additionally, in terms of DHS (Department of Homeland Security) organization, it may be important to note that FEMA (Federal Emergency Management Agency) is now known as Emergency Preparedness and Response (EP&R), although FEMA retains its own website and popular name recognition. Other directorates of DHS share responsibility for preventing and responding to terrorism in certain ways. For example, BTS (Border & Transportation Security) administers immigration law to prevent terrorists and instruments of terrorism from entering the country (a separate agency, called US Citizenship & Immigration Services administers benefits and services); IAIP (explained in the previous box) is the primary intelligence center for assessing terrorist threats; and the directorate of Science & Technology (S&T) is charged with control of superterrorism involving weapons of mass destruction.
Risk analysis encompasses both threat and risk assessment. Risks are not the same as perils, which are a cause of risk; and neither should risks be confused with hazards, which are contributing factors to peril. Almost anything can be a hazard (an oily rag for example), and any sort of life-threatening disaster can be a peril (e.g., a fire, earthquake, or flood), but "risk" technically refers to something that can be measured and always involves a loss or decrease in value of some asset. Risk is almost always best defined in some cost-benefit fashion, as a more rational alternative to emotional decision making based on fear, intuition, and extraordinary expense to foolishly guarantee 100% "freedom from risk." Examples of risk include: pesticide poisoning, ozone depletion, hazardous waste, auto accidents, death by firearms, the dangers of genetically modified food, weapons of mass destruction, radiation exposure, obesity, and sexually transmitted diseases. Note how in each case, the risk involves something you have to do (eradicate pests) which implies the benefit, and something you wish didn't have to do (the cost, or accepting some poisoning of crops). Two other terms also need defining: threat -- which is anything adversely affecting an asset (threats can be natural, accidental, or intentional); and vulnerability -- which is any weakness or flaw than can be exploited by a threat. Without a vulnerability, a threat-source does not present a risk. Threat assessment is normally concerned with the credibility and/or non-randomness of the threat (like in the criminology of terrorism, where motivation, modus operandi, and pattern of previous attack is part of the threat analysis). The next step is vulnerability assessment, which normally ranks or rates the expected losses to produce what is called a matrix for the cost-benefit evaluation of various asset-protective countermeasures. No one-size-fits-all method of planning exists. Best practices require authorities to engage in worst-case scenario assessments based on various what-if questions. There are no rules of thumb for how "in depth" these kind of assessments ought to be, but a general guideline is to develop scenarios that can be prepared for with drills or exercises involving resource allocation, training, and simulated disaster response exercises, like the well-known TOPOFF (Top Official) exercises which are conducted biannually (lessons learned from TOPOFF exercises are located on various places throughout the Internet, but mainly catalogued at the National Response Team site. A good drill would include the evacuation routes people should take, where stockpiles of medical supplies are stored, how emergency and medical personnel should deploy, and a test of hospital capacity. Advanced disaster simulations can be done utilizing the National Guard Bureau's J5 (IA) Unit, any of the state National Guard units which have an elite WMD-CST (weapons of mass destruction, civil support team, any of the state Departments of Homeland Security, utilizing the National Response Center, or utilizing FEMA's Emergency Management Institute where best practices are called "smart practices."
For the timely availability of resources, the US relies somewhat heavily on reciprocal aid agreements and standby contractual agreements (as well as memoranda of understanding), but there is also the Defense Production Act of 1950 (Public Law 81-774), or DPA, a little-known bill of great national security significance. Many of its provisions are not permanent law and must be continually renewed by Congress, but the Act gives the President powers to ensure the expansion of economic production and insure economic stability in times of war and "civil emergency." Plans and procedures must be approved by the NSC (National Security Council). The President usually delegates DPA powers to the heads of various agencies, and such powers include: requisition of property for national defense, expansion of productive capacity and supply, wage and price stabilization, settlement of labor disputes, control of consumer and real estate credit, and establishment of contract priorities and materials allocation designed to aid the national defense. Ensuring that the US will maintain self-sufficiency in oil, energy, telecommunications, and material science technology are top priorities, but in principle, the Act trumps the self-governance (best practices) nature of Critical Infrastructure Protection, or CIP. Critical infrastructure consists of "physical or virtual systems so vital to the United States that [their] incapacity or destruction would have a debilitating impact on security, national economic security, national public health or safety." Section 214a of the Homeland Security Act of 2002 encourages the private sector to “involuntarily” submit critical infrastructure information to the DHS in hopes of tapping important information about security vulnerabilities that reside within the private sector, which owns 85% of the infrastructure. Those segments consist of about fourteen (14) sectors of the economy, only 12 of which were identified in PDD-63 (banking; chemicals; continuity of government; electricity; law enforcement; fire services; food; health; higher education; information technology; insurance; oil & gas; transportation; and water). In practice, the self-regulatory nature of CIP is maintained by an active industry reserve program and a number of joint civilian-government associations and organizations. However, due to liability concerns and the possible loss of competitive advantage, many industries are reluctant to divulge information to DHS, despite a Freedom of Information Act (FOIA) exemption which has been added.
In addition to the powers granted the federal government under the DPA, there are also public health powers (in the event of a bioterrorism attack). Most of the laws relating to public health stretch back to the 1920s and deal with quarantine and decontamination procedures, although the Public Health Service Act (1994) (42 USC §201-300aaa-13) is the modern statutory authority for HHS (Health & Human Services) to take the lead in coordinating an interstate quarantine if necessary. The US has never had to attempt any large-scale quarantine, and it is not clear if it could be successfully accomplished, or what rules would govern the use of force. Treatment is another public health issue, and it is generally accepted that ever since 1905 when mandatory smallpox vaccinations started, that the government has a right to compel people to receive treatment and/or ration scarce treatment resources. Much of quarantine regulatory law is specific to certain diseases, but it is assumed the law is flexible enough to deal with pathogens that might be weaponized by terrorists in the future. The main problem, of course, is enforcing the quarantines, and it would be naïve to think that such a mass detention of citizens would not require military personnel. There are interesting case precedents, as follows:
The Case Law Regarding Quarantine Powers
| In 1989, a French
ship was prevented from entering a port in New Orleans because of a
quarantine instituted by its state board of health. It was
challenged upon commerce grounds that such an action (by the state)
unduly burdened commerce. The Court rejected this view, recognizing
that “from an early day the power of the states to enact and enforce
quarantine laws for the safety and the protection of the health of
their inhabitants has been recognized by Congress, is beyond
question… that until Congress has exercised its power on the
subject, such state quarantine laws and state laws for the purpose
of preventing, eradicating, or controlling the spread of contagious
or infectious diseases, are not repugnant to the Constitution
of the United States, [even though] their operation affects
interstate or foreign commerce…” – on that day, the power was upheld
as a state police power controlling the health, safety, and
moral of its citizens, a power not ceded to Congress. Compagnie
Francaise de Navigation a Vapeur v. State Board of Health, 186
US 380 (1902).
Similarly, the Court in Jacobson v. Massachusetts, 197 US 11 (1905) declared “that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” – the Court upholding a program of compulsory smallpox vaccination.
Involuntary commitments by the government, certain restrictions on movement and behavior, and unwarranted searches and seizures in support of the interests of public health and safety have contemporary jurisprudence counterparts as well:
• Upholding curfews in South Florida in the wake of Hurricane Andrew (Smith v. Avino, 91 F. 3d 105 (11th Cir. 1996));
• Public school district’s student athlete drug policy did not violate constitutional right to be free from unreasonable searches (Vernonia Sch. Dist. v. Acton, 515 US 646 (1995));
• Affirmed random drug testing (without a basis of suspicion) of high school students who wanted to partake in extracurricular activities (Board of Education v. Earls, 536 US 822 (2002))
• Unwarranted searches “traditionally upheld in emergency situations” (Camara v. Mun. Court of San Francisco, 387 US 523 (1967))
• Evidence of diseases not necessarily needed before quarantine can be implemented because test results not always immediately available (Empire Kosher Poultry v. Hallowell, 816 F. 2d 907 (3d Cir. 1987))
Continuity of operations (COOP) plans are handled under Executive Order 12656 which details the safekeeping of Cabinet officials, other key leaders, and essential functions if the normal operation of government is threatened or disrupted (such as in a nuclear attack). Each major government agency is assigned lead and support functions for various tasks. Much of the government's plans for post-nuclear survival remain secret, and some of the measures that are known are controversial; such as the underground facility at Mount Weather, a hollowed-out nuclear-proof mountain in western Virginia. The public can now tour one such facility, intended to house the entire U.S. Congress, on the grounds of the Greenbrier Resort in West Virginia. Following 9/11, the government created at least two additional bunkers at secret locations along the East Coast which are regularly staffed by about 100 officials each. Continuity of operations plans are widely used in the computer security field, a topic we discuss next.
COMPUTER SECURITY AND THE LAW OF CYBERWARFARE
Ever since the mostly still-classified PCCIP (President's Commission on Critical Infrastructure Protection) Report of 1997 (also called the Marsh Report), serious concerns have existed regarding the legal framework for safeguarding critical infrastructures from computer attack. While much has been written about cybercrime and cyberterrorism, a lot of hype and misconceptions still abound with respect even to basic definitional issues. It may be helpful to point out what cyberterrorism is not. Not every use of a computer by a terrorist is cyberterrorism; their use of the Internet for encryption, propaganda, and/or port scans may not constitute cyberterrorism unless there is a real chance of causing violence, fear, or economic damage. Causing violence is the essential part of the FBI definition of cyberterrorism as "any premeditated, politically motivated attack against information, computer systems, computer programs, and data which results in violence against non-combatant targets by sub-national groups or clandestine agents." Instilling fear (or creating terror) is the essential part of the NIPC definition as "any destruction and/or disruption of services to create fear by causing confusion and uncertainty within a given population, with the goal of influencing a government or population to conform to a particular political, social, or ideological agenda." Likewise, Denning's (1998) definition is that "to qualify as cyberterrorism, an attack should result in violence against persons or property, or at least cause enough harm to generate fear." Economic damage is another essential part of most definitions, such as the CSIS definition (pdf) which holds that it is "the use of computer network tools to shut down critical national infrastructures (such as energy, transportation, government operations) or to coerce or intimidate a government or civilian population." A pressing legal problem involves how to distinguish between cyberterrorism and what might be called cyberhooliganism. Sharp (1999) and Aldrich (2005) provide some insights into this as well as the legal foundations for cyberwarfare, which shall concern us as the question of when certain cyber-incidents trigger national security powers, with Sharp (1999) holding to a self-defense position (under international law) and Aldrich (2005) pointing out other possibilities.
Cyberwarfare is more commonly known as "information warfare," and to be even more correct, as "information operations," a DOD term which encompasses both offensive actions taking in time of war and defensive actions taken during peacetime. Technically, information operations would include psychological operations (PSYOPS) designed to convey selected indicators to foreign audiences so as to influence their emotions, motives, reasoning, and behavior. Some writers and the media tend to use the terms cyberwar, infowar, and PSYOPS interchangeably (e.g. Campen et. al. 1996). Infowar tends to be the more engineering-oriented term (e.g. Waltz 1998) that embraces PSYOPS most completely. We shall not, however, be using the infowar term, preferring cyberwar instead, because as Adams (1998) points out, infowar is mostly about exploitation of information when we are concerned primarily with cyberterrorism where resources are attacked, damaged, and/or destroyed. This may not be the best terminology, but it is consistent with at least some conceptions of infowar (e.g. Schwartau 1994). Key early works on information warfare include: Toffler & Toffler (1993); Arquilla & Ronfeldt (1993); and Schwartau (1994).
During June 1997, a no-notice drill was conducted by NSA (dubbed ELIGIBLE RECEIVER) to see if there was too much sensitive information openly available on the Internet and if some of it could be enhanced by social engineering, as it easily was. During February 1998, a series of computer attacks were launched against DOD computers from unknown parties in Israel, the United Arab Emirates (UAE), France, Taiwan, and Germany. Called SOLAR SUNRISE, a second and more classified attack (dubbed MOONLIGHT MAZE) was discovered the following month, the trail this time leading back to Russia. Since those days, cyberattacks against sensitive or critical government computers have numbered in the hundreds of thousands per year, coming from about 25 nations mainly. Only 1,800 of these attacks have been identified as cyberterrorist attacks, and while the Gartner Research "digital Pearl Harbor" scenario conducted in 2002 is unlikely (five cyberterrorists in a boat over the Mediterranean bringing down the entire US telecom and energy infrastructure), several nation-states and several international terrorist groups are suspected to have cyber-brigades that do nothing but probe and scan for weaknesses and vulnerabilities in the US infrastructure every day. The question becomes: does this constitute warfare?
Difficulties exist in attributing a cyberattack to a foreign power or agent. Ever since PDD-63 of 1998, US policy has been to treat any cyberattack as a law enforcement problem first, then see if circumstances enable elevation to a national security response. However, the US has never really been satisfied with the traditional law enforcement solution (see, e.g., the US position on the Council of Europe's proposed Cybercrime Convention). Phillip Johnson's (2002) unpublished article, entitled "A National Security Response to Computer Intrusions" is more instructive about the likely direction the US is headed in (archived here by the Air Force as a doc file but NOT reflective of the views of any officer or employee of the Department of Defense). A national security response to a cyberattack would consist of one or both of the following elements:
"track-back" -- where officials quickly trace an attacker through the Internet nodes transited by obtaining the transactional data from each node. Such action may require the cooperation of Internet Service Providers or a legal means of compelling subscriber information from such providers. Alternatively, forensic toolkits may be used, along with pen register and trap and trace devices. If the computer intrusion is disrupting a real-time military deployment or combat operation, or presents an imminent and serious threat to public health and safety, or is producing extensive property damage or paralyzing financial institutions, there is a need for urgent action in the form of utilizing constitutional exemptions to search & seizure law, such as the "exigent circumstances" exemption or the "hot pursuit" exemption.
"shoot-back" -- once the computer equipment is located (meeting the disruption and/or threat requirements above), it may be possible to damage and destroy it by electronic means or traditional military means. Electronic means (such as discharging an electromagnetic pulse toward the equipment) would probably have to meet just war standards regarding proportionality and discrimination, ensuring no unintentional or collateral damage to nearby noncombatants. Traditional military means would involve a raid by special forces or a cruise missile through the window.
In sum, a cyberattack become cyberwar when an imminent and substantial threat exists to an important national security interest, and/or circumstances demand the expedited location of the attacker, and/or a forcible response is necessary. Cyberwarfare follows the rules of just warfare and customary international law, discriminating between combatants and non-combatants and not being excessive in relation to any incidental (collateral) damage caused. In many respects, the legal problems facing cyberwarfare do not appear to be largely international in nature. Domestic laws may present the problem. The US has some rather stringent laws regarding abuse of computer systems, such as the Personal Privacy Act (PPA), the Electronics Communications Privacy Act (ECPA), the Economic Espionage Act, and the Computer Fraud and Abuse Act (CFA). Likewise, numerous states have jumped on the cybercrime bandwagon to pass all sorts of state statutes, which theoretically at least, might prohibit national security officials from engaging in cyberwarfare. The following exemption exists, however:
Exemptions to the Computer Fraud and Abuse Act (last amended 1999)
|Criminal penalties are proscribed against knowingly or recklessly damaging or gaining unauthorized access to protected computers, where "protected computers" are defined as those used in interstate commerce or foreign commerce or communication. The exemptions to this proscription include "any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the US, a state, or a political subdivision of a state, or of an intelligence agency of the US." (18 USC Section 1030 2002)|
Note that the above exemption does NOT cover the military. Several attempts have been made by the DOD to get legislative relief on this matter, but in another sense, it doesn't matter, since the military is assumed exempt sub silentio (Aldrich 2005). Many statutes do not contain specific exemptions for the military, but such statutes often are never enforced in practice against the military when acting in their national defense role. After 9/11, the DOD dropped its lobbying to get legislative relief on 18 USC 1030 because it feared doing so would place in jeopardy a number of other statutes where a national defense exemption is assumed.
IMMIGRATION LAW AND NATIONAL SECURITY
Immigration law is a complex subject, but an attempt will be made here to be concise and stick to matters that surround national security. The primary immigration law for the US is the Immigration and Naturalization Act of 1952 (also known as Title 8 of the US Code), but it has been amended many times over the years. Different government agencies are involved; e.g., the Dept. of State processes visas and refugee requests; the Dept. of Labor handles labor market evaluations; DHS handles investigation and service benefits; and the Dept. of Justice handles appeals and detention facilities. Aliens are admitted into the country as either immigrants (permanent) or nonimmigrants (temporary). Each year, the numbers are roughly 750,000 immigrants and 35,000,000 nonimmigrants. Temporary stays may be for a number of years (if in school or filling a slot in a specialty occupation). Permanent stays are given on the basis of family relationships, employment capabilities, or humanitarian need. A visa does not automatically guarantee admission, only travel to a port of entry where a DHS inspector "re-qualifies" the alien's status and watch list computer programs such as NSEERS (National Security Entry-Exit Registration System) are activated. To become a US citizen, most aliens must reside in the country for at least five years.
There are approximately ten kinds of non-admissible aliens: those convicted of certain kinds of crimes mainly, ranging from crimes of "moral turpitude" to drug trafficking to prostitution and commercialized vice. Other grounds for non-admission include having a communicable disease, likely to become a public welfare recipient, being a stowaway, being a practicing polygamist, and being a government official who has violated human rights somewhere. Also, some aliens are denied admission on grounds of national security. There are also about ten grounds for deportation: a conviction for certain crimes; violating the grounds of admission; failure to promptly report change of address; marriage fraud; alien smuggling; illegal voting; and document fraud. Likewise, deportation can result from a finding that continued presence is contrary to foreign policy interests or national security; and/or any showing of involvement in terrorist activity.
Various amendments to immigration law, not the least of which is the USA Patriot Act of 2001, have made it easier to non-admit and/or deport suspected terrorists. In a nutshell (see Cooper 2005 for a fuller explanation), any "intention," "inciting," fundraising, or other supporting activity relating to a fairly broad definition of "terrorist organization" (including any group mentioned in the Federal Register or simply a group of two or more individuals, whether organized or not) now qualifies as the same as "material support." Only the charge of "continued presence contrary to foreign policy interest" carries a presumption of First Amendment protection for beliefs, statements, or associations.
There are three ways to remove a suspected alien terrorist, and in keeping with customary law in this regard, the choice of removal process depends upon the person's connection with this country. Constitutional protections vary by which removal process is used, as follows:
Alien Terrorist Removal Court (ATRC) -- this is a special removal court made up of five federal judges appointed by the Chief Justice to hear in camera and ex parte classified evidence against aliens suspected of terrorist involvement. To initiate proceedings, the Attorney General must certify that probable cause exists. If the decision of the judges is unfavorable, a public hearing takes place, and the alien has the right to be represented by counsel (including appointed counsel if in financial need). At this hearing, the alien is provided with an unclassified summary of the classified information used against them.
Expedited Removal -- this is a summary procedure not requiring a hearing, in existence since Knauff v. Schaughnessy (1950) and upheld in Kwong Hai Chew v. Colding (1953) where an alien's travel pattern overseas as well as undisclosed evidence from a confidential source is used against them (usually from an intelligence agency or human informant; aka Joseph K-type evidence).
Standard Removal Proceedings -- this is the standard adversarial model of a hearing which takes place in a courtroom. The defendant may be represented by counsel, but not at state expense. All evidence is subject to rules of admissibility and cross-examination, although exceptions exist for any classified evidence (see Jay v. Boyd 1956). "Clear and convincing" is the evidentiary standard, and most defendants have the burden of proof to show that they are not a terrorist.
Most legal controversies have arisen over the Star Chamber-like qualities of ATRC and the use of classified evidence. With regard to the closed nature of ATRC proceedings (exempt even from FOIA requests), the theory, at least according to McGehee v. CIA (1983) is that due to the mosaic-like nature of intelligence gathering, public disclosure of information about individual cases might communicate sensitive information to those who pose a continuing threat to the security of the US. For classified evidence, it should be noted that immigration law does not permit classified evidence alone to prove that an alien in deportable. Typically, other evidence is used to make that claim, and the classified evidence is usually used to keep the person in custody (detention) and/or deny any other motions for relief made on their behalf. Many suspected alien terrorists languish in detention for long periods of time via a vast network of holding facilities, since the government possesses unusually strong detention powers in this regard (see Malkin 2004). Mandatory detention is, in fact, legislatively indicated for all aliens covered by any terrorist removal procedure as well as certain broad groups of aliens convicted of certain crimes. The case law contains mixed findings on detention matters, but generally, a review process is needed (about every six months) to justify continued detention.
KOREMATSU AND "RACIAL" PROFILING
Two more controversies need to be discussed. First, there is the issue of "special interest" cases, exemplified in the post-9/11 action by authorities who rounded up hundreds of persons thought to have some connection with terrorist organizations or to have important information about the 9/11 attacks. Critics charged that such actions constituted "profiling" against aliens who were Muslim or from the Middle East. Critics also made complaints about conditions of confinement. The classic case law on the subject of "profiling" and the internment of people on the basis of national security is Korematsu v. US (1944), an important case which justifies, in critical hours, the detention of large groups until loyalties can be sorted out. The case is usually referred to as upholding the validity of profiling after attack - still good law in many respects. The case is so important almost a full brief needs to be presented, as follows:
Toyosaburo Korematsu v. US, 323 U.S. 214 (1944)
| FACTS IN THE CASE
Korematsu was a California citizen of Japanese descent convicted of remaining in a "curfew area" contrary to military orders excluding such persons from certain areas for purposes of protection against espionage and sabotage in the run-up to the war effort with Japan. A year earlier, the Court heard a similar case, Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, and sustained a conviction obtained for violation of a similar curfew order. However, Korematsu involved forced exclusion (and relocation) from the area in which the defendant's home was located; a far greater deprivation than constant confinement to the home as was the case in Hirabayashi. The military had concluded that curfew provided inadequate protection and ordered exclusion, pointing out that the military was in the best position to say who should, and who should not, remain in the threatened areas.
ISSUES IN THE CASE
1. As it was contended in Hirabayashi, the curfew was argued as an unconstitutional delegation of power; that it and other orders on which it rested were beyond the war powers of Congress, the military authorities and of the President, as Commander in Chief.
2. It was additionally contended that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race.
3. In addition, Korematsu argued that by the time the exclusion took place, any further risk of Japanese invasion had subsided.
REASONING AND ANALYSIS (dissenting opinions appear below in this 6-3 decision)
The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. The Court cited precedent on the doctrine of "military necessity" that an individual can be deprived of their constitutional rights when such deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate. In addition, a very real fear of Japanese invasion existed up and down the Pacific Coast, leading the military command to justify all reasonable means necessary to combat these dangers, and in light of this, we must not erect too high or too meticulous a standard. However, the military sought justification for the exclusion upon questionable racial and sociological grounds (of the Japanese as an unassimilated, tightly knit, emperor-worshipping people) which is the most sweeping denial of constitutional rights imaginable in the absence of martial law. A better rationale would have been the assertion that loyalties of the group were unknown and time was of the essence. Subsequent investigation did show that there were members of the group who retained loyalties to Japan and who would not swear allegiance to the US. In fact, several thousand evacuees requested repatriation to Japan. In light of these matters, existing precedent, that the unknown loyalties argument of the military cannot be refuted, and the fact that conditions of warfare threatened our shores, it is ruled by the majority in this case that the military excercised the appropriate power to protect commensurate with the threatened danger, and that the power to exclude includes the power to do it by force if necessary.
On August 10, 1988 President Reagan signed the Civil Liberties Act, legislation extending to Japanese-Americans who had been held in the wartime detention camps a formal apology "on behalf of the nation." The Act also promised the estimated 60,000 surviving detainees reparations in the amount of $20,000 each. In March 1997, nearly a decade after President Reagan and Congress approved it, a little known portion of the Civil Liberties Act was finally implemented. The Civil Liberties Public Education Fund announced that it had allocated $2.7 million to 100 organizations or individuals in 20 states to develop educational programs about the World War II internment of the Japanese-Americans.
EXCERPTS FROM THE CASE
Mr. Justice Roberts (dissenting): I might agree with the court's disposition of a hypothetical case where the liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out are familiar examples. My agreement would depend on the definition and application of the terms 'temporary' and 'emergency' and no pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed [citing Chastleton Corp. v. Sinclair]. [However] in this case, I must dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights. This is not a case of keeping people off the streets at night as with Hirabayashi nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand.
Mr. Justice Murphy (dissenting): A plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism. It is essential that there be judicial questioning of [tests] military discretion [citing Sterling v. Constantin as requiring this and U.S. v. Russell as containing it: as "reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger."] In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards, [but it is apparent] the exclusion order necessarily rested for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage. Evidence of Commanding General DeWitt's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony: "I don't want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. The danger of the Japanese was, and is now--if they are permitted to come back--espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area."
Mr. Justice Jackson (dissenting): No claim is made that Korematsu is not loyal to this country [and these are an] unusual series of military orders which made this conduct a crime. They forbid one to remain, and they also forbid him to leave. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained' (Article 3, s 3, cl. 2). It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. No court can require such a commander in such circumstances to act as a reasonable man. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient [and] I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were.
EXTRADITION AND RENDITION
Second, there is the issue of extradition, which means finding a country to deport the alien to. Article 3 of the UN Convention Against Torture prohibits a country from expelling, returning (refouling), or extraditing a person to another state where he or she would be tortured. As can be imagined, most countries are not altogether willing to accept another country's terrorist deportees, so the problem becomes finding a place where the risk of torture has subsided to an acceptable threshold or where diplomatic assurances or pledges have eliminated the risk -- fairly low levels of guarantee against torture. However, some countries (such as the US and Canada) believe that a national security exemption ought to exist in the UN Convention so that it would at least be permissible to balance the risk of torture with competing national security issues. Issues of extradition and extraordinary extradition (sending someone to a country where they will likely be tortured) are controversial under international law.
Lowenthal (2006) also notes that rendition (the sizure of individuals wanted by the US) is an increasingly-used tactic in the war on terrorism. Technically covert action which predates the war on terrorism, renditions involve "wanted persons" living abroad and not in countries where the US can use legal means to take them into custody. The operations are called renditions because the individual is rendered (that is, formally delivered) to US custody. Renditions are controversial mainly because they are extra-territorial actions, in some instances, involving a foreign government aware of the operation but preserving its own plausible deniability by looking the other way and allowing the rendition to proceed. In other instances, the practice is controversial because the US did not retain custody of the suspects but sent them on toward their home nations (most often in the Middle East, but elsewhere) where the rules about custody and interrogation tend to be different, with the effect that some rendered suspects have likely been subject to harsh treatment if not torture. Critics charge that the US has therefore been knowingly complicit in torture, and supporters argue that the US is doing as much as it can to prevent torture.
In June 2005, an Italian judge named 13 CIA officers in an indictment concerning the rendition of an Egyptian, Osama Moustafa Hassan Nasr, from Milan in 2003. The US government made no official response. CIA officials let it be known that any rendition would have been known to the Italian government. The Italian government denied any such knowledge.
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