HOMELAND SECURITY AND RELATED LEGAL ISSUES

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HOMELAND SECURITY AND RELATED LEGAL ISSUES
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Roadmap

• Al Qaida Terrorism
• Homeland Security
• Reorganize for the Fight
• Interagency Cooperation
• DoD Mission
• Homeland Defense
• Support to Civil Authorities

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Terrorism

• The calculated use of unlawful violence or
  threat of unlawful violence to inculcate fear
  intended to coerce or intimidate governments or
  societies in the pursuit of goals that are
  generally political, religious, or ideological.
  (U.S. SROE)
• Criminal in nature

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Players Al Qaida Friends

• 1993 - Support of anti-US operations in Somalia
• 1993 - Bombing of World Trade Center
• 1994-95 - Failed plots to assassinate the Pope
  Pres. Clinton and bomb US embassies and airlines
• 1995 - Bombing of US compound in Riyadh
• 1995 - Attempted assassination of Egyptian Pres.
  Mubarak

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Players Al Qaida Friends

• 1998 - Bombings at US embassies in Kenya and
  
  Tanzania
• 1999 - Failed New Years attacks in US Jordan
• 2000 - Bombing of USS Cole

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Players Al Qaida Friends

• 11 September 2001
• World Trade Centers
• Pentagon
• Shanksville, Pennsylvania
• Bioterrorism?

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Post 11 September 2001

• French Oil Tanker
• Attack on US Marines
• Bombings

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Post 11 September 2001 The Attacks Continue

• Hotel bombing in Kenya
• SAM fired at civilian airliner
• Assassinations
• Bombings in
• Bali, Morocco and
• Saudi Arabia

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The Future???
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United States Response

• Congressional
• Joint Resolution 23 (18 Sep 01)
• USA Patriot Act
• Presidential
• Declaration of National Emergency (14 Sep 01)
• Report to Congress (24 Sep 01)
• Executive Order 13223 (Mobilization)
• Executive Order Office of Homeland Security
• Executive Order Presidents Homeland Security
  Council
• Creation of the Homeland Security Agency

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Office of Homeland Security

• Director - Tom Ridge
• Mission To develop and coordinate a
  comprehensive national plan to strengthen
  domestic protections against terrorism directed
  against the United States.
• Established Homeland Security Council

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Homeland Security Council

• Responsible for advising President on all aspects
  of homeland security
• Members
• President and Vice President
• Secretary of Homeland Security
• Secretaries of Defense, Transportation, Treasury
• Attorney General
• Directors of FEMA, FBI, CIA

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Homeland Security Interagency Cooperation

• The national homeland security plan will
  include all levels of government and the private
  sector. The principal challenge of homeland
  security is to focus all the resources at our
  disposal - - to safeguard our country from those
  who try to do us harm.
• Tom Ridge

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Major Areas of Homeland Security

• Preparation
• Prevention
• Protection of infrastructure
• Response and recovery
• Incident Management
• Continuity of Government
• Public Affairs
• Legislation
• Budget

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• Crisis Management - Law
  Enforcement Mission
• To identify, acquire, plan use of resources to
  anticipate, prevent or resolve threats or acts -
  primarily a federal responsibility
• Consequence Management - Emergency Management
  Mission
• To protect public, restore services, provide
  emergency relief - primarily state and local
  responsibility

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HLS Reorganization

• Established 25 Nov 02
• Merges 22 agencies into 1 - USCG, Border Patrol,
  Customs Service, INS, Secret Service, FEMA,
  Transportation Security Administration, etc
• Five Divisions
• Border Transportation Security
• Emergency Preparedness Response
• Science and Technology
• Information Analysis Infrastructure Protection
• Management

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Homeland Security Interagency Cooperation

• Department of Justice
• Lead agency in responding to terrorism inside
  U.S.
• Coordinates with Dept of Homeland Security
• FBI
• Lead agency within DoJ
• Coordinates with state and local law enforcement

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Homeland Security Interagency Cooperation

• Lead agency for investigating terrorist
  activities that occur aboard civilian aircraft
• Air Marshal Program now part of Bureau of
  Immigration and Customs Enforcement (ICE)

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Homeland Security Interagency Cooperation

• Department of Energy
• Nuclear and Radiological Scientific and
  Technical support
• diagnostic
• radiological
• material identification
• hazards assessment
• on-site management
• clean-up

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Homeland Security Interagency Cooperation

• Dept of Health Human Services
• Regulatory follow-up
• Identification of agents, medical management
• Immunization
• Fatality management
• Patient tracking, evacuation,
  and records

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Homeland Security Interagency Cooperation

• Environmental Protection Agency
• Chemical, Biological, and Radiological Scientific
  and Technical support
• agent identification
• hazard detection
• environmental monitoring
• on-site safety
• Works with HSA if navigable waters are involved

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Role of the DoD in Homeland Security

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Role of the DoD in Homeland Security

• I think as we look at the role that the
  Department of Defense plays in homeland security
  . . . the most obvious component of the DoD force
  structure to have a role with domestic security
  is the National Guard. We will have to work
  within DoD and with the governors to identify
  what that role would be. If it requires changing
  the configuration of some units or redeploying
  some of the assets in a different way, certainly
  that has got to be something we should consider -
  - and we will consider.
• Secretary Tom Ridge

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Role of the DoD in Homeland Security

• Six DoD Homeland Security Missions
• SecDef is member of Homeland Security Council
• Protection of DoD personnel and facilities
• Homeland Defense
• Biological Chemical Weapon Support
• Assistance to civilian law enforcement
• Assistance to other civilian authorities

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Homeland Defense

• Homeland Defense Activity
• An activity undertaken for the military
  protection of the territory or domestic
  population of the United States, or of
  infrastructure or other assets of the United
  States determined by the Secretary of Defense as
  being critical to national security, from a
  threat or aggression against the United States.
• 32 U.S.C. 901

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HLS Reorganization

• Unified Command Plan
• UCP effective 1 Oct 02
• Created US Northern Command
• Eliminated US Space Command
• Shifted JFCOMs geographic AOR to NORTHCOM and
  EUCOM
• Assigned most of Russia to
  EUCOM

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US Northern Command

• Established 1 Oct 2002
• Admiral Timothy Keating - Commander
• Mission Homeland Defense and Civil Support
• To deter, prevent, and defeat threats and
  aggression aimed at the United States, its
  territories and interests within the AOR, and
• As directed by Pres or SecDef, to provide
  military assistance to civil authorities
  including consequence management operations

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Civil Support Operations

• Disaster Assistance
• Immediate Response
• Consequence Management
• Special Events
• Counternarcotics/counterterrorism
• Civil Law Enforcement

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Support to Civilian Law Enforcement Agencies

• Posse Comitatus Act is still in effect.
• "Whoever, except in cases under
  circumstances expressly authorized by the
  Constitution or Act of Congress, willfully uses
  any part (person) of the Army or Air Force as a
  posse comitatus or otherwise to execute the laws
  shall be fined or imprisoned for not more than 2
  years, or both.
• (18 USC 1385)

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Support to Civilian Law Enforcement Agencies

• The Who
• Active duty Army and Air Force
• Navy Marines per DoDD 5525.5 (B)(1)
• Civilians under command of military
• Reserves
• Guard in Title 10
• NOT Title 32 status

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Support to Civilian Law Enforcement Agencies

• The What
• DoDD 5525.5 defines posse comitatus as
  involving interdiction of a vehicle, vessel,
  aircraft, or similar activity search or seizure
  arrest, apprehension, stop and frisk or similar
  activity or the use of military personnel for
  surveillance or pursuit of individuals, or as
  undercover agents, informants, investigators, or
  interrogators.

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Support to Civilian Law Enforcement Agencies

• The Where
• Applies in United States
• Extraterritoriality
• DoJ Position - not applicable
• DoD Position - applies per DoDD 5525.5
• Judicial Position - 9th Circuit says applicable

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Support to Civilian Law Enforcement Agencies

• Exceptions to Posse Comitatus
• Military Purpose Doctrine
• furthering military function
• Civil Disturbances
• extraordinary circumstance
• ROE GARDEN PLOT
• Passive Support
• Loaning equipment and facilities
• Expert training
• Information sharing
• Drug Immigration Enforcement by statute

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The Future of Posse Comitatus

• Sen Joseph Biden, Chairman, Senate Foreign
  Relations Committee the law has to be amended,
  but we are not talking about general police
  power. (21 July 2002)
• Gen Eberhart favored changing law to grant
  greater domestic powers to the military

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Debate Resolved?

• Reaffirmed in Homeland Security Act of 2002
• The PCA is not a complete barrier to the use
  of the Armed Forces for a range of domestic
  purposes, including law enforcement functions,
  when the use of the Armed Forces is authorized by
  Act of Congress or the President determines that
  the use of the Armed Forces is required to
  fulfill the Presidents obligations under the
  Constitution to respond promptly in time of war,
  insurrection, or other serious emergency.
• Section 886, HSA of 2002

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Support to Non-Law Enforcement Agencies

• Stafford Act (42 USC 5121)
• Immediate Response Authority (10 days)
• Pres Declaration of National Emergency
• Oklahoma City 11 Sep 01
• Pres Declaration of Emergency
• Governors request required
• Pres Declaration of Major
  Disaster
• Governors request required

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Legal Issues since 9/11

• Self-Defense
• Character of Operations
• Status of Personnel
• Employment of Force Issues
• Targeting, Civil Aircraft, Entry in Sovereign
  Airspace, Assassination, Use of Force to Counter
  CONUS Terrorist Incident, Force Protection
• Military Support to Civilian Authorities
• Status of Forces Issues
• Coalition Issues
• Mobilization Issues

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QUESTIONS?