IN THE COMMON DEFENSE Part 7 pdf

P1: JZZ 0521877636Xc08 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:4 Use of Military Force 237 the buck should stop with the president and not with the lance corporal or even the secretary of defense when the hardest legal and policy ques- tions are presented. It is also at the level of the president and the secre- tary of defense, rather than at the level of the combatant commander, that the process of congressional consultation and briefing occurs. This in turn, is an important element of constitutional process, democratic legitimacy, as well as a necessary step in building and sustaining public support for conflict. However, the corollary is also true. With presidential decision comes direct responsibility for result. Civilian participation may also increase the political content of decision, prompting officials to delay decisions or eschew tough field choices on other than military grounds. The reality is that presidents and secretaries are briefed on military oper- ations so that command decision at the level of the commander in chief can be taken, in the words of General Tommy Franks, on an “amazing time- line.” 109 With global communication, presidential decision need not cause undue delay where decisions flow directly from the president to the secre- tary of defense and are communicated to the combatant command (often by the chairman of the Joint Chiefs). Moreover, where it is not practicable to brief targets on a case-by-case basis, the president can, and should, exercise his constitutional command function through the review of theater ROE and concepts of operation. But if not exercised with contextual forethought, civilian command can negate significant U.S. military advantages in profes- sionalism, including a U.S. leadership corps unmatched in training, ability, and independent thought, from combatant commander to small unit leader. And it emphasizes ground truth, with decisions taken on the basis of the observations by those with “eyes-on-target.” Make no mistake; the majority of tactical and targeting decisions are purely military decisions. In an ongoing conflict like those in Iraq and Afghanistan the chain of command should be pushed horizontally to the field. This is especially true in a counterinsurgency context where rapid and immediate small unit actions and decisions will determine the tactical mil- itary outcome. In such a contest, policy and strategy should be set from above, but command should be exercised in the field. However, there is also an obvious smaller set of decisions defined by the factors identified above that are presidential in scope, and some that are contextually in between, including of course the policy context in which small unit actions are con- ducted. Fifth, and in a related manner, the lawyer and in particular the military lawyer should consider whether the chain of command adopted in context provides the optimum balance between what is colloquially referred to as vertical and horizontal command. As with other processes, this question presents an apparent tension between security and speed, on the one hand, P1: JZZ 0521877636Xc08 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:4 238 In the Common Defense and decision processes requiring referral up the chain of command, on the other. Where a vertical structure is adopted, decisionmakers must also spec- ify those decisions capable of and intended for civilian command, which means the secretary of defense or the president. Where horizontal command is utilized, commanders must decide how far down the chain of command decisional capacity should extend. From a legal policy perspective, vertical command adds consistency in the application of the LOAC in targeting and in the manner that detainees are treated, for example. It also helps to fix accountability for both. Where, for example, difficult targeting decisions are taken at the combatant command or national level, the influence of service culture and a combat arms perspec- tive in determining legal results are less important. Personality (other than the president’s) will also play less of a role in how the LOAC is interpreted and applied. The cautious military lawyer or aggressive commander (and sometimes the other way around) becomes less determinative when legal policy is set at the top. Vertical command also enhances the institutional capacity to fuse dis- parate interagency and command information and views into an analytic package for decision. This is particularly important in a conflict to deter terrorist WMD attack where pop-up targets will emerge for moments and strike decisions must be taken in difficult geopolitical contexts with imper- fect information. Vertical command and fusion can also serve as a fail-safe where such process helps to channel target review into a routine and spe- cialized process of review at the national level and combatant command level. There are also risks to vertical command, or better said, too much vertical command, either because of layering or micromanagement. Vertical civilian command is less important, indeed potentially disruptive, where the military objective is set and the concept of operations calls for traditional and rapid maneuver warfare. First, as the Long Commission demonstrated in the con- text of the Beirut bombing, vertical command – in that case involving eleven layers between the president and the Battalion Landing Team commander – can diffuse responsibility and accountability in dangerous ways. 110 Vertical command can take time and delay critical decision. Second, where combat operations are fluid, vertical target decision- making is inherently dysfunctional unless it is exercised through a comman- der’s intent or ROE. This might be illustrated with reference to weaponized unmanned aerial vehicle (UAV) platforms that can be deployed both as point- to-point weapons (that is, launched with a specific coordinate in mind) or used to patrol for targets of opportunity. In the initial mode, vertical com- manders can appropriately participate in a target decision where the target is pre-planned or fixed. In the latter case, the tactical setting will dictate that command discretion and the LOAC be applied through rules of engagement P1: JZZ 0521877636Xc08 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:4 Use of Military Force 239 or target-class approval, rather than an assessment of specific target circum- stances at the time of attack. In summary, the constitutional chain of command should be exercised in a contextual manner that accounts for a range of legal, policy, and mili- tary factors in deciding when and how presidents, secretaries, and military commanders exercise command and, in doing so, apply the law. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 9 Homeland Security A successful strategy to combat terrorism should incorporate at least four elements: offense (efforts to capture and kill terrorists and disrupt their networks); defense (the physical protection of the United States and the global protection of WMD materials); preventive diplomacy (efforts to address the root causes of terrorism, and thus mitigate both the duration of conflict as well as the potential number of persons willing to attack the United States) 1 ; and, a response and recovery capacity to respond to home- land incidents regardless of cause. Such a strategy should employ the full array of national security tools and, through employment of these tools, offer geographically and functionally concentric opportunities to prevent and deter attack. This chapter considers legal aspects relating to the element of defense, that aspect of national security known after 9/11 as homeland security. 2 The chapter starts by reviewing the nature of the homeland threat. How- ever, part of the difficulty in reaching agreement on the elements, costs, and benefits of a homeland security plan derives from disagreements on the nature of the threat. In some cases, disagreements on implementation, in fact, reflect underlying disagreements on the risk presented. Therefore, the threat is defined up front, from which the homeland security regime should follow. Included in the discussion of the threat are facts and figures that should give the reader a sense of the scope of the defensive problem. However, the facts are evolving as the United States improves its security. Moreover, even where the facts should be fixed – for example, the length of the shoreline – different figures are used in the literature (see footnote 31). I offer the fig- ures to give the reader a sense of scale, knowing that the number of contain- ers entering the country will vary, as I hope, will the number of containers searched. 240 P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 241 The chapter then addresses the structure for homeland decision-making. In particular, the text considers the strengths and weaknesses of a Home- land Security Council process that is parallel to, but distinct from the NSC process. Next, the vertical arrangements between federal and state authorities for responding to emergencies are considered. As in other con- texts, special emphasis is placed on intelligence. Without intelligence, the United States cannot effectively allocate finite resources against infinite risks. The chapter then considers two structural issues that permeate home- land security: the distribution of authority and responsibility among federal, state, and local governments, examined under the rubric of federalism; and, second, the legal and policy concerns associated with the domestic use of the military. These issues are addressed throughout the chapter and in the conclusion. The chapter next turns to three topical homeland security regimes addressed to different aspects of homeland security strategy. The first is the nonproliferation regime, because WMD attack represents the gravest threat to U.S. national security and will remain so for the foreseeable future. Nonetheless, the regime has not received commensurate attention. Next, I consider maritime security, because the regime is well developed, but nonetheless illustrates that even where the risk and law are finite, and the need agreed, there remain significant gaps in regime implementation. The maritime regime also illustrates the relationship between U.S. and interna- tional law in the homeland security context. Third, the chapter considers public health, because it serves as a necessary base capacity whether the threat is avian flu or a weapon of mass destruction. Some experts forecast that avian flu is the most likely homeland “catastrophe,” although not with- out rebuttal. 3 What is clear is that if a “pandemic” does occur, the physical and economic consequences will be extreme, with potential for as many as 1.9 million deaths according to the government’s “worst-case” estimates. 4 Of course, a comprehensive treatment of homeland security should consider additional regimes including those addressed to critical infrastructures, like chemical plants and nuclear plants, as well as food security and rail trans- port. That is one of the dilemmas with homeland security: when box-cutters can be turned into weapons of mass terrorism there is no end to the potential number of threats, targets, or legal regimes in play. That puts additional pressure on maintaining and creating a flexible pol- icy and decision-making framework. The decisional framework and law in each of these areas are evolving. Therefore, this chapter offers a sketch, not a comprehensive review. For this same reason, the chapter concludes with a series of lessons learned from Hurricanes Katrina and Rita in 2005 along with principles that should apply when shaping the legal framework for homeland security. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 242 In the Common Defense PART I HOMELAND SECURITY DECISION-MAKING, RESOURCES, AND LEGAL FRAMEWORK A. THE THREAT REVISITED As stated at the outset of this book, the prospect of a WMD attack in the United States is real, relentless, and potentially catastrophic. The vice chair- man of the 9/11 Commission has stated that the greatest threat to the United States in the foreseeable future is the threat that a terrorist, or ter- rorist group, will obtain a nuclear weapon and detonate it in Washington, New York, or another U.S. city. 5 Reasonable persons might disagree on the probability of such an attack. One’s sense of the immediacy and likelihood of the threat may vary depending on where you live, including whether you live in Washington or New York, whether you fly, and how you inter- pret the relative frequency or absence of attack in particular regions of the globe. A 2006 poll of 116 terrorism specialists representing a cross-section of political perspectives placed the likelihood of “a terrorist attack on the scale of 9/11 occurring in the United States” in the next five years (by the end of 2011) at 79 percent. Of this percentage, 9 percent said an attack was certain, 29 percent said it was very likely, and 41 percent said somewhat likely. When asked to project the likelihood of an attack occurring in the next ten years, the same respondents placed the likelihood at 84 percent, with 26 percent in the certain camp and 34 percent choosing the very likely category. 6 We should have no illusions about whether Al Qaeda, and other jihadists, or perhaps homegrown terrorists like Timothy McVeigh or Eric Rudolph, are trying to get weapons of mass destruction and no illusions about whether they will use them, or try to use them, if they get them. The jihadist enemy is impatient to kill, but patient in waiting for an opportunity to do so. Recall that Al Qaeda waited eight years between its 1993 and 2001 attacks on the World Trade Center. Therefore, we face for the foreseeable future what Harold Lasswell called the “socialization of danger,” a sense of threat throughout society and not isolated to the political elites and the security infrastructure. 7 That makes society’s members potential participants in, and not just observers of, national security policy and process. The problem is magnified because this threat comes without prospect of rational deterrence. The enemy does not bear the necessity of defending a territory, a people, or an elite. Moreover, although we call this enemy Al Qaeda, the enemy consists of many different groups and individuals that are even less recognizable than Al Qaeda. The enemy may be unknown until he acts. Thus, unlike the Cold War, we do not face a fixed and known enemy P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 243 with known weapons. We face, in part, an unknown enemy, with unknown weapons and tactics. To use Donald Rumsfeld’s sometime maligned phrase, in this conflict there are “known unknowns” and “unknown unknowns.” 8 What seems to unify the opponent is the tactic selected – terrorism – and the foci of hatred, including hatred of the United States, not necessarily bonds of ethnicity, nationality, or religion. In the face of this threat, it is possible to become obsessed, or hysterical, like the man in Connecticut who encased his house with duct tape after the federal government suggested keeping a supply of tape on hand to ward off the atmospheric effects of a dirty bomb. 9 Alternatively, one might adopt a position of “optimism bias,” placing the risk out of mind, or simply damn- ing the torpedoes and moving full speed ahead. Why not something between extremes? The homeland security paradigm requires a realistic assessment of the threat as one that is perpetual and potentially catastrophic. The threat is also intermittent, and perhaps, subject to containment. But containment will require sustained investment and a steady policy commitment designed to garner a century of dividends, not the short-term return of four-year polit- ical certificates of deposit. Homeland security will also require adoption of a legal framework and, as importantly, implementation of that framework through bureaucratic pro- cess and cultural adhesion. As Professor Kellman has observed, law is an antidote to panic. 10 In time of crisis law provides structure, predictability, and therefore a source of calm. Observers and participants in the national security process must therefore consider and reconsider whether as a society, and as a government, the United States has responded on a steady course, with the necessary and correlative sense of urgency, resources, and conti- nuity. We should ask as well whether our process of decision and our legal framework is sufficient to deter, defend and respond to these threats and to do so in a manner that mitigates and manages the impact any future attack may have on our way of government and our way of life. B. HOMELAND SECURITY STRATEGY With this backdrop, policymakers and lawyers must define homeland secu- rity and, in light of that definition, design a corresponding strategy and decision-making architecture. As discussed in Chapter 2, national security has an objective physical element and a subjective “values” element. The two may come in tension. However, we need not concede that this tension is inherent or that it presents a zero-sum equation. But that depends on whether you view liberty and security as absolute values or contextual val- ues. For example, your view of security checkpoints or data-mining may vary depending on whether you view due process or “privacy” as contextual or absolute measures. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 244 In the Common Defense Consider, for example, the difference in the criminal law’s treatment of Fourth Amendment searches with the law’s treatment of the Sixth Amend- ment right to jury trial. In applying the Fourth Amendment, for example, courts balance society’s interest in law enforcement with the search sub- ject’s expectation of privacy; where a person possesses a subjective expecta- tion of privacy that is objectively reasonable under the circumstances, then government intrusion amounts to a search and requires a warrant or the application of an exception to the warrant requirement. What is reasonable therefore will depend on the circumstances, including the nature of the place to be searched and the predicate for the government’s interest. In contrast, the right to a jury trial in federal civilian criminal law is absolute and in state law absolute for serious offenses. 11 In national security context, one might consider whether presidential authority, “data-mining,” or “profiling” should be subject to absolute mea- sures presenting zero-sum equations with liberty, or whether they warrant contextual measure, requiring assessment as to whether a particular exer- cise of power is “reasonable.” In this latter approach, what is reasonable may depend on necessity, as well as on the application of contextual checks and balances through operation of law. For example, the Fourth Amend- ment warrant requirement is a procedural check on the power of the police to search. In data-mining, similar procedural and substantive mechanisms might apply. The government might data-mine for pattern-based informa- tion using internal safeguards, but require a substantive and procedural external trigger before resorting to subject identification or subject-based searches. In this example, data-mining and privacy do not present absolute values, but rather contextual values. In August 2006 UK authorities disrupted a plot to use liquid explosives to bring down ten U.S bound aircraft over the Atlantic. The plot focused attention on differences between U.S. and UK law, including real and per- ceived differences in the length of time police could detain a terrorist sus- pect without charges. U.S. officials and reporters focused on the tempo- ral distinction between UK law, under which a terrorist suspect may be held for twenty-eight days without charges, and U.S. law, which has a com- parable seven-day limitation, but without identification of the procedural distinction. Under UK law, detention of the suspect is subject to court order and review no less than once every twelve hours, whereas a U.S. suspect may be detained incommunicado on the authority of the attorney general alone for renewable seven-day periods. 12 Moreover, as one judge has noted, there are other options under U.S. law for addressing the problem presented. 13 Thus, the UK model offers an enhanced timeline, but with enhanced oversight by an independent and detached judge. Moreover, the debate bypasses an additional critical distinction in U.S. practice regarding the treatment of P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 245 “enemy combatants” who may be subject to indefinite detention without recourse to federal courts, depending of course on how the government and the courts interpret and apply the Military Commissions Act. With homeland security, the paradigmatic challenge is apparent and difficult because it entails value and security judgments applied to known unknowns and unknown unknowns. Further, unlike the Fourth Amendment example, which is reactive in application, the homeland security model must be proactive if it is to be effective. To prevent, the government must neces- sarily act with inchoate information or risk acting too late. If you adopt a contextual as opposed to an absolute “rights” model, this argues for empha- sis on procedural checks and balances rather than substantive checks and balances. Paradigm shifts are also difficult because public perceptions, and there- fore public tolerances, are substantively and temporally inconsistent. They vary as perceptions of the threat ebb and wane. They also seemingly vary between disciplines. The public, for example, tolerates a high degree of phys- ical intrusion and inspection prior to boarding an aircraft, but also appar- ently possesses a disproportionate willingness to assume the risk that the aircraft’s cargo has gone unscreened or lightly surveyed. An endless conflict requires long-term, consistent, and continuous policy. The homeland security paradigm is also complex because the scope of the defensive problem is so large. A quick and necessarily static review sug- gests the enormity of the physical challenge of stopping a terrorist attack within the United States or at the border. The United States has 95,000 miles of shoreline, 361 separate land and water ports of entry, and an exclusive economic zone of roughly 3.4 million square miles. The U.S. land border with Canada is 5,225 miles in length and the border with Mexico 1,989 miles. Across these borders approximately 11 million trucks and more than 2 million rail cars enter the country each year. In the maritime sphere, there are more than 50,000 maritime port calls in the United States each year, involving, among other vessels, 7,500 foreign flag vessels. Each year, approximately16 million containers are transported into the United States. Depending on which year’s statistics and which DHS materials are cited, 5– 10 million of these are transported by sea, of which 95 percent enter twenty “megaports.” Indeed, 90 percent of the world’s cargo moves by container. In a given year there are 500 million legal entries into the United States, including 330 million by noncitizen foreign nationals. The number of illegal entries into the United States is more difficult to estimate. Estimates place the number of illegal immigrants in the United States at approximately 7–10 million persons. 14 Of course, all of these statistics will change over time, per- haps in reaction to U.S. security measures. For the purposes of this chapter, the specific statistics are less important than conveying a sense of scale and thus an appreciation for the legal and bureaucratic challenge. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 246 In the Common Defense Moreover, a state or nonstate actor’s “soldiers” need not enter the United States to cause havoc. A remote computer attack might bring down an energy grid or shut down an air traffic control system. Government officials have reported that government computers face “relentless” attack from govern- mental and nongovernmental sources overseas. 15 Moreover, the opponent may obtain the capability to launch a physical attack from locations adjacent to the border. Consider, for example, that the Northern Command’s area of responsibility extends 500 miles off the coast into the maritime approaches to the United States, extending the opportunity to interdict incoming vessels beyond the effective range of most sea-launched missiles. As many ways as there are to access the United States there are an equal number of potential targets. At any given time there are upward of 60,000 persons airborne over the United States in commercial aircraft. There are more than 100 licensed nuclear power reactors in the United States accord- ing to the Nuclear Regulatory Commission website, which also provides their locations. In New York City, the Metropolitan Transit Authority carries 7 million riders per day. Every power grid is a target of opportunity and every mall a symbolic target. This returns us to the paradigm problem. If we do too little we will fail to stop the next attack, and may even encourage it. If we do too much, we may undermine our present way of life even in the absence of attack, and diminish our physical and values-based resources in the process. C. DECISION-MAKING STRUCTURE Given the functional and geographic breadth of potential targets in the United States and the myriad potential avenues of attack, homeland secu- rity requires a decision-making process that can, if necessary, effectively fuse information and exercise command across vertical and horizontal lines of responsibility at the federal, state, and local level. As is immediately appar- ent, unlike most other national security issues, the chain of command and chain of responsibility may take an uncertain path from first responder to the president, if it runs to the president at all. Yet, speed and unity of command are essential. The law can assist by creating processes that emphasize unity of command and clarity in decision and that offer mechanisms that rapidly identify and process jurisdictional or policy disputes. The Joint Terrorism Task Forces serve as a vehicle for accomplishing this end with respect to intelligence. The Homeland Security Operations Center, in theory, can connect federal, state, and local decision- makers with the same speed. This might also be accomplished bureaucrat- ically through the use of template command structures, with the advance designation of lead agencies, task groups, or master plans, like the National Response Plan (NRP). It might also be accomplished through the conduct [...]... U.S.C 372 ), and providing training and advising on the use of equipment (10 U.S.C 373 ) to state and local law enforcement authorities .75 In addition, in 1996 and 19 97 the secretary of defense was authorized to provide military assistance in support of Department of Justice activities 9 :7 P1: KOD 0521 877 636Xc09 270 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 In the Common Defense relating to the enforcement... along the continental United States) and 3.4 million square 9 :7 P1: KOD 0521 877 636Xc09 256 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 In the Common Defense miles of ocean contained within the Exclusive Economic Zone (EEZ), the largest EEZ in the world.31 The law has not helped the department’s leadership nurture a departmental esprit de corps, of the sort one might associate with the Marine Corps or the. .. shall “be invited to attend all meetings of the HSC/PC.”25 As a matter of practice, this 9 :7 P1: KOD 0521 877 636Xc09 250 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 In the Common Defense means that the APNSA and, through the APNSA, the NSC staff have access to the agenda and papers associated with HSC and HSC/PC meetings The HSC Deputies Committee serves in turn as the senior sub-cabinet and inter-agency... welfare of their citizens 9 :7 P1: KOD 0521 877 636Xc09 258 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 In the Common Defense Present statistics illustrate the point, and the corresponding coordination problem There are approximately 800,000 law enforcement officers in the United States serving in approximately 18,000 separate state and local law enforcement agencies.35 The New York City Police Department... and the enactment and enforcement of regulations to protect public health Thus, in the lead case on the subject, the Supreme Court in 1905 upheld the authority of the state of Massachusetts, through the Board of Public Health of the City of Cambridge, to require vaccination and 9 :7 P1: KOD 0521 877 636Xc09 262 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 In the Common Defense revaccination of all inhabitants... Thus, the chain of command runs from the president to the secretary of defense to the four-star commander (The assistant secretary of defense for homeland defense provides policy direction and oversight of the Defense Department’s homeland defense activities.) 9 :7 P1: KOD 0521 877 636Xc09 CUFX132/Baker Homeland Security 0 521 877 63 6 March 21, 20 07 2 67 The Commander of Northern Command is dual-hatted as the. .. 521 877 63 6 254 March 21, 20 07 In the Common Defense therefore is susceptible to being undermined by the resistance of one or more actors or agencies If the critical players, in which category the president is central, back the process with the weight of their participation and their adherence to its parameters, then the process will succeed If the president permits end runs or ad hoc decision-making... him something Interestingly, some local police forces have taken the concept one step further and now conduct their own foreign intelligence liaison.44 Intelligence issues abound First, there is the difficulty of volume Where a national UK terrorist alert requires coordination with forty-three regional 9 :7 P1: KOD 0521 877 636Xc09 260 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 In the Common Defense police... seemingly competitive missions The first three address the terrorist threat The primary mission of the department is to (A) prevent terrorist attacks within the United States; (B) reduce the vulnerability of the United States to terrorism; (C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States The remaining mission statements pull in other... would, in theory, require a staff with the combined strength of the NSC and OHS staff This would invite bureaucratic layering and potentially undermine the efficiencies behind the president having a small but energetic security staff So too, the principal officers in such a process might spend undue time handling the sort of personnel and administrative issues that inevitably arise within a bureaucracy, involving . “coordinate” appears forty times in the six-page document, making it “redundantly clear” P1: KOD 0521 877 636Xc09 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 9 :7 248 In the Common Defense that the. embedded in the bureaucratic culture, as the NSC process is, and P1: KOD 0521 877 636Xc09 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 9 :7 254 In the Common Defense therefore is susceptible to being undermined. NSC meetings, may decline to attend HSC meetings, or pick and choose between NSC or HSC meetings P1: KOD 0521 877 636Xc09 CUFX132/Baker 0 521 877 63 6 March 21, 20 07 9 :7 252 In the Common Defense as