IN THE COMMON DEFENSE Part 8 doc

P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 279 throughout the former Soviet Union. In addition, “over 5,000 former Soviet weapon scientists and engineers once engaged in nuclear weapons research are now or soon will be employed on peaceful, civilian research projects.” 107 However, proponents argue that the program has suffered from chronic lack of funding and a foundering Russian commitment. Critics declaim a lack of accountability over money spent in the former Soviet Union and suggest that the program creates its own market incentives encouraging the sale of nuclear material. Legislative debates about whether to make the Nunn-Lugar authorities global in reach linger. On the bilateral and multilateral plane, the principal post-9/11 nonpro- liferation effort is the Proliferation Security Initiative (PSI). 108 This initia- tive is intended to harness existing international, domestic, and foreign law to create nonbinding policy mechanisms, and corresponding expectations, to seize and control WMD materials on the high seas, on land, and trans- ported through the air. As of 2006, the PSI included seventy countries within its umbrella. Fifteen of these countries are core members, with the others apparently agreeing to cooperate on an ad hoc basis. Members of the PSI, in theory, agree to principles of interdiction and agree to adopt pre-set coor- dinating mechanisms for facilitating interdiction. The PSI has served as a mechanism for the negotiation and conclusion of bilateral ship board- ing agreements, including agreements with Panama and Liberia. Although legally nonbinding, the PSI creates the political expectation, and therefore corollary political costs, that states will consent to the search and seizure of their flagged vessels suspected of transporting illicit WMD shipments. Further, as PD-27 offers a U.S. domestic process for maritime interdiction, the PSI serves as a mechanism for coordinating intelligence and maritime interdiction on a global scale. Whether addressed to centrifuges or enriched uranium, the importance of the nonproliferation regime is self-evident. Nonproliferation encompasses those efforts of the United States and its international partners to control, eliminate, and otherwise prevent rogue states and nonstate actors from obtaining those weapons that pose the greatest risk to U.S. national security. The regime represents a series of concentric nets backed up by the harpoon of military force. But these nets have holes. The legal problem is that the international framework is porous and incomplete and lacks enforcement mechanisms. If the PATRIOT Act rep- resents the apex of public attention to national security law, our nonpro- liferation framework resides near the other extreme. We could use more librarians expressing concern about proliferation; which is to say, this area of the law merits the same level of scrutiny and appraisal as the PATRIOT Act has received. The policy dilemma is that the same tensions that exist in domestic law exist globally – economic and security interests may not align. Moreover, P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 280 In the Common Defense commercial and political interests create an international “prisoner’s dilemma,” an incentive for each state to cut its own deal. These tensions are evident in the uneven, one might say schizophrenic, treatment nonpro- liferation receives in domestic and international practice. 109 The threat of a WMD attack is our greatest national security threat. And yet, discussion of nonproliferation does not appear until page 95 of the 2006 National Security Strategy of the United States. More important than rhetorical treatment is practice. Here the commit- ment is lukewarm rather than overriding. In December 2005, the 9/11 Public Discourse Project gave the United States a grade of D in its efforts to con- tain and secure WMD. In the words of the Discourse Project, “countering the greatest threat to U.S. national security is still not the top national secu- rity priority of the president and the Congress.” 110 This should be our central bilateral and multilateral legal and policy concern linked as it is to the gravest threat the United States faces, the risk of nuclear attack by a nonstate actor. Nonetheless, there are indications the regime receives rhetorical emphasis, but has not risen near or to the top of the bilateral and multilateral agenda. The PSI, for example, remains nonbinding and continues to include only like-minded states, as opposed to those most likely to engage on the margin of proliferation. Moreover, allied states like Australia wrestle with the rela- tive commercial benefits of enriching and transporting uranium at the same time that they are committed to preventing other states from doing so. 111 With homeland security, one should not underestimate the complexity of the bureaucratic and legal challenges, even where the policy choice is obvi- ous. In a pluralistic society that seeks to balance liberty and security as well as economic security with physical security, the policy choices are not always obvious, especially when the issue is framed in terms of margins of return and increments of risk. However, here there is one obvious policy choice. United States law and policy should treat the prospect of a nuclear attack as the most immediate national security threat to the homeland and there- fore place nonproliferation at the top of the security agenda. This requires a degree of policy, legal, and public mobilization heretofore absent from U.S. policy. The National Security Strategy for 2006 states that “the proliferation of nuclear weapons poses the greatest threat to our national security.” How- ever, this statement is not found until page 19 of the report. Nonproliferation belongs on page 1 of national security. American diplomacy must mobilize to address this threat. Committed membership in the PSI should be viewed as the quid pro quo for effective bilateral relations with the United States. We should put as much energy and focus into CTR, ship boarding agreements and air interdiction agreements as the United States put into concluding Article 98 agreements regarding the International Criminal Court. 112 To obtain Article 98 agreements, for example, the United States was willing to terminate military assistance and aid even after 9/11. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 281 If the nonproliferation regime fails in preventing rogue states and non- state actors from obtaining and trying to use WMD, then the security of the United States will depend in part on the strength and weakness of the next level of defense in the homeland security regime. B. MARITIME SECURITY During the 1980s, U.S. Ambassador to Japan Mike Mansfield predicted that the twenty-first century would be a Pacific century. Mansfield did not mean a peaceful century. He meant a century oriented toward the trade and security interests of the Pacific Rim countries and the vast maritime environment that defined their geographic place in the world. 113 More recently, Henry Kissinger described the importance of the Pacific to nation-state relations in the twenty-first century. Like Mansfield, Kissinger was thinking of nations like Russia, China, Japan, India, and Korea when he wrote: The rise of China – and of Asia – will, over the next decades, bring about substantial reordering of the international system. The center of gravity of world affairs is shifting from the Atlantic, where it was lodged for the past three centuries, to the Pacific. The most rapidly developing countries are in Asia, with a growing means to vindicate their perception of national interest. 114 After 9/11 the importance of maritime security to U.S. national security became even more evident. It is evident in terms of our commercial and eco- nomic security. Ninety-five percent of non-North American trade with the United States is conducted by ship. 115 The impact of interrupting this com- mercial stream is illustrated by the 2001 dockworkers strike in Long Beach, California. The direct and indirect losses from the strike were estimated at from $1 billion to $2 billion a day. 116 The importance of maritime security to U.S. physical security is also evident. The maritime domain is one of the triad of border control areas of responsibility. Using present statistics for reference, in any given year, 21,000 commercial vessels make port calls in the United States. Another 110,000 fishing vessels and 58,000 recreational boats use U.S. ports each year. 117 The Coast Guard designates approximately two vessels a day as “high interest.” Each high-interest vessel is boarded and searched before it is allowed into a U.S. port of entry, a process that can take from forty-five minutes to one week. 118 In addition, in fiscal year 2005 (October 1, 2004–September 30, 2005) the Coast Guard reported detecting 174 foreign vessel incursions into the Exclusive Economic Zone (EEZ). 119 As for containers, over 200 million containers are transported among seaports around the world each year. Approximately 16 million containers P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 282 In the Common Defense are transported across U.S. borders each year, up to 10 million through maritime traffic. That is roughly 26,000 per day. In this context, “the nuke in the harbor,” or purported nuke in the harbor, is on most experts’ short list of homeland security nightmares. 120 Although the oceans do not afford the United States the sense of protection they once did, they do provide an opportunity to apply a concentric strategy of defense, based on the time and distance of sea passage. There is a considerable body of domestic, international, and foreign law relevant to U.S. maritime security. The Law of the Sea, in text, 121 and through operation of customary international law, addresses issues of jurisdiction to enforce domestic, international, and foreign law on the high seas; in the territorial sea, which generally extends 12 miles out from the coast, and in the contiguous zone, which extends 200 miles from the coastline. 122 The Proliferation Security Initiative (PSI), for example, is among other things, an effort to agree in advance on the application of the Law of the Sea and principles of self-defense in advance of crisis so that fleeting operational opportunity is not lost to legal or political wrangling. Closer to the continental United States, the Northern Command’s Area of Responsibility (AOR) extends out 500 miles into the Atlantic and Pacific ocean and air approaches to the United States, well beyond the twelve-mile territorial sea. The AOR thus recognizes the nature of the potential threat as well as the importance of maximizing the amount of time to identify and respond to potential threats, while maintaining the equivalent of a mar- itime explosive setback. Title 14 of the United States Code, in turn, provides the Coast Guard with broad law enforcement and regulatory enforcement authorities. As described in Section 89 of Title 14, “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdic- tion, for the prevention, detection, and suppression of violations of law of the United States.” To date, Congress has provided one framework statute in this area. The Maritime Transportation Security Act of 2002 implements amendments to the 1974 Safety of Life at Sea Convention (SOLAS). The amendments were adopted at U.S. urging by the International Maritime Organization (IMO) to address post-9/11 security concerns. In accordance with the 2002 IMO amendments the Act’s requirements entered into force on July 1, 2004. The Act requires U.S. flagged vessels as well as foreign flagged 123 vessels entering U.S. ports to have ship security plans, ship security officers, and company security officers, as well as on onboard security equipment like silent alarms. Vessels are certified by the flag state as having satisfied these requirements. In accordance with the IMO regulations, the Act also requires that each port of a certain capacity have a port facility security plan, a port security officer, and port security equipment. Further, the Act requires monitoring and access P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 283 control at U.S. ports for personnel and cargo. The IMO regulations also require a capacity for secure shipboard communications and installation of automated information systems (AIS). These systems are in essence beacons identifying vessels at sea in much the same manner as IFF transmitters identify commercial aircraft. Under the IMO regulations AIS must have a ship-to-shore range of 2,000 miles. In the case of the United States, the IMO regulations and the Act implicate 9,500 U.S. flagged vessels, 3,500 port facilities, and 55 sea ports. 124 The Act demonstrates, at least in the sphere of maritime security, a link between international law and U.S. law and security. The SOLAS Conven- tion and the IMO provided the legal vehicle and multilateral mechanism to address U.S. security concerns on a global basis. The Act, like the IMO regu- lations, also illustrates the adoption in law of a concentric theory of defense, by providing an opportunity for security in foreign ports and on the high seas before vessels reach U.S. shores. However, the IMO regulations and subsequently the Act also reveal the shortcomings in implementing an agreed international framework. The IMO has no organic enforcement mechanism. Like much of international law, the IMO regulations are based on reciprocity: the principle that parties will adhere to the norm, because it is in their self-interest that other states adhere to the norm and thus assume comparable benefits and burdens on maritime commerce. Moreover, implementation of the Act is costly. In the case of the United States full implementation is estimated to cost up to $7 billion over ten years. 125 In light of the cost, other maritime states, including flag states of convenience, may not perceive the necessity for improved maritime con- trols with the same cost-benefit perspective as the United States does after 9/11. Not surprisingly, as of 2006, the IMO projected 50 percent compliance by member states. There remain significant incentives for flag states of con- venience not to assume the cost of compliance. Moreover, rogue actors will likely not comply with the requirements, unless they do so as camouflage. 126 Nonetheless, as implementation increases, these mechanisms should help U.S. authorities better identify vessels warranting seaborne challenge and inspection. Moreover, in intelligence vernacular, increased “maritime domain awareness” will limit the number of vessels necessitating challenge. Maritime security falls within the bureaucratic jurisdiction of the Depart- ment of Homeland Security and the Department of Defense. Thus, the bureaucratic stew includes the Coast Guard, Customs and Border Protec- tion (CBP), Immigration and Customs Enforcement (ICE), and the North- ern Command. Bureaucratic coordination is addressed through inter-agency mechanisms like the Aviation Management Council and the Commodity Boat Council. Operational coordination is addressed in fusion centers on the East and West coasts and in harbor control facilities. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 284 In the Common Defense Foreign vessels intending to enter U.S. ports must provide ninety-six hours’ prior notice and documentation of the last ten ports visited. In addi- tion, the DHS runs a Sea Marshals program to assume positive control of vessels entering U.S. ports. These mechanisms and process are well along. However, a number of problems remain. First, the intelligence challenge is considerable. Unlike smugglers, persons intent on attacking the United States are less defined by the patterns of conduct and therefore of detection associated with regular smugglers. Second, the scale of the challenge is enormous, both in terms of geographic reach and complexity. Consider the ability of the United States to stop drug shipments into the United States. Third, there is an inher- ent tension between security and commerce. Too heavy a security blanket may have an impact on commerce in unintended ways. Finally, the task at hand is not matched by comparable resources. The Coast Guard is an able service, which demonstrated its institutional leadership and respon- sive capacity during Hurricane Katrina, but it is retooling and has finite resources. In 2004, for example, funding was provided for just fifty-three sea marshals. Given these contextual elements, maritime security necessarily employs the principle of risk management as well as concentric defense. This is illus- trated with reference to the Container Security Initiative. Depending on which statistics are cited, up to sixteen million containers enter the United States each year by rail, truck, and boat. Customs and Border Protection has stated that as of 2006 approximately 12 percent of these containers are searched for contraband, migrants, and national security threats. In the case of maritime containers, approximately 5 percent are physically searched. However, this figure varies widely depending on how the term “search” is defined. As this is an evolving practice, the numbers are less important than obtaining a sense of scale. Which containers are searched and what are the questions? To reduce the number of containers warranting search in U.S. ports, CBP has stationed inspectors in eighteen countries at thirty-five sea- ports to inspect and certify containers at the point of shipment. 127 Employing methodology developed to address drug smuggling, the remaining contain- ers are evaluated by an automated target modeling system (computer model) at the National Targeting Center, which is intended to identify containers and shipments warranting targeted as well as random inspection. The modeling to address the terrorist threat is evolving. Finally, with respect to the risk of nuclear infiltration, the Department of Energy Megaports Initiative has since 2003 provided radiation detection equipment and training to personnel at foreign and U.S. ports to screen cargo. According to its statistics, CBP operates more than 825 radiation portal monitors at U.S. ports of entry, including 181 at seaports, and has issued 14,000 handheld radiation detection devices. 128 According to the P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 285 GAO, however, the “Megaports Initiative has had limited success in initiating work at seaports identified as high priority by DOE’s “Maritime Prioritiza- tion Model.” As of March 31, 2005 DOE had completed work at two foreign ports and signed agreements to initiate work at five other ports. 129 Moreover, these developments notwithstanding, stories about infiltrating materials proliferate. 130 If the nonproliferation regime is geared toward preventing the WMD threat, and maritime security is geared toward casting a net to detect and deter, the public health regime is oriented toward detection, response, and recovery. C. PUBLIC HEALTH Perhaps no area of homeland security law is as complex for the national security lawyer as that pertaining to public health preparedness and emer- gency response. First, this area of law is new, as is much of the law directed toward emergency preparedness. Until the 1990s, the public health profes- sion soldiered along in relative national security anonymity. This is evident in the growth of informational websites that in five years have ballooned from slim pickings to encyclopedic in scope. Second, the law is complex because the applicable bureaucratic and legal frameworks lack precise boundaries, in part because health emergen- cies themselves lack precise boundaries. Thus, the bureaucratic interplay between, for example, the National Response Plan, directed to the federal response, and the National Incident Management System, directed to state and local response, and State Emergency Response Plans is not immediately clear. This already complex federalism model is made more complex by the addition of a third leg, the private doctors, nurses, and hospitals essential to responding to health emergencies. This area of law is a maze to begin with, but it is also untried and therefore unproven in the homeland security context. Moreover, if one looks behind the legal curtain one often finds that good intentions are unfunded or unful- filled. The lawyer is left to explain how a legal mechanism will function in the absence of resources. These factors increase the importance of field exercises, not just to appreciate how the various plans and authorities might merge in crisis but also to establish the personal ties and friendships that will oil bureaucratic gears that catch or stick in crisis. The 1990s witnessed an initial, then growing, recognition of the neces- sity for a revitalized public health system to address national security threats, closely but not exclusively linked to terrorism. In Presidential Deci- sion Directive 39, “U.S. Policy on Counter-terrorism” (June 21, 1995), for example, President Clinton returned public health to the national security agenda, including bioterrorism response as a federal planning requirement. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 286 In the Common Defense In addition, the directive designated lead agencies to respond to foreign and domestic terrorist incidents and established dedicated modules (equipment, personnel, and airlift) to address specific WMD scenarios. An executive framework for responding to bioterrorist events began to emerge. In 1999, the National Pharmaceutical Stockpile (now the Strategic National Stockpile) was created with a focus on threats from nonstate actors. Included in the stockpile were “push-packages” containing medicines, vac- cines, and medical equipment. These packages are placed at strategic loca- tions with air support designated to move the packages to affected areas within twelve hours of an identified need or less. The stockpile also includes vendor-managed inventories maintained in the private sector of vaccines that are on call for delivery within thirty-six hours of identified need. A bureaucratic framework developed on a parallel track. In 1998, a spe- cial assistant to the president and senior director was added to the NSC staff to advise the president on public health, and in particular bioterrorism. The Office of Emergency Preparedness was created within the Department of Health and Human Services, and a National Health Alert Network and Labo- ratory Response Network (LRN) established. The LRN coordinates, through the CDC, private, state, and federal laboratories with the capacity to test for pathogens and identify possible patterns indicative of terrorist attack. Dur- ing the anthrax attacks in October–December 2001, for example, the LRN processed 125,000 samples for anthrax involving 1 million separate tests at 100 different labs. The 1990s also saw the beginning of efforts to bridge the gap between the federal government’s national security responsibilities and the states’ police power. In 1999, for example, the Bioterrorism Initiative resulted in $40 million in funding through HHS for state programs to address bioterrorism. This was a start; however, funding remained constant until 2002, when after 9/11, it increased to almost $1 billion. In addition, the first federal, state, and local exercises were conducted with bioterrorism as the centerpiece, such as the 1999 Top-Off Exercise (for “top officials” exercise) and the 2000 Dark Winter Exercise, with former officials playing the lead roles, including former state officials giving added realism to the intergovernmental debates that ensued. The Top-Off Exercise remains the government’s lead homeland security exercise. These efforts received statutory impetus in the Public Health Threats and Emergencies Act, PL 106–505, November 13, 2000, which included $180 million in grant funding for programs to train, plan, and coordinate between state and local authorities. The Act also established an interdepartmental working group on preparedness to coordinate bioterrorism research and develop shared standards between federal and state agencies. After 9/11 a more comprehensive statutory framework addressing public health as a national security concern emerged. A number of framework laws P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 Homeland Security 287 are particularly important and warrant review. The first is the Public Health Service Act, 42 U.S.C. 201, et seq. This is the basic enabling statute for the federal public health system dating to 1944. Among other things, the Act as amended provides authority for federal funding of public health activities at the state and local level. It also includes two essential emergency authorities for the Secretary of HHS. First, the surgeon general, with the approval of the secretary Is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission or spread of com- municable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For the purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sani- tation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, as in his judgment may be necessary. Regulations prescribed under this section shall not provide for the appre- hension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Exec- utive orders of the president upon the recommendation of the Secretary in consultation with the Surgeon General. 42 U.S.C. Section 264. The law and regulations elaborate on the exercise of this quarantine author- ity. But note that the trigger designation originates with an executive order from the president. On April 1, 2005, the president added avian flu to the list of diseases subject to federal quarantine authority in Executive Order 13375. The federal quarantine authority is based on Congress’s interstate commerce power; however, in today’s context it might arguably be based on the president’s national security authority as well. State and local authori- ties also have quarantine authority based on the state police power; indeed, this quarantine authority is considered a primary vehicle in addressing the outbreak of communicable disease. Second, the Act authorizes the secretary of HHS to declare a public health emergency, including, in cases of significant outbreaks of infectious disease or bioterrorist attack, allowing the secretary to provide certain technical assistance to state and local authorities such as lab, workforce, and medic- inal assistance. But note that this law assumes that state and local author- ities will take the lead. The secretary has declared three such emergencies since 2000, in response to 9/11 and in response to Hurricanes Katrina and Rita. In addition, the Act serves as the enabling legislation for the Public Health Service, defining among other things its organizational structure and mission. P1: KOD 0521877636Xc09 CUFX132/Baker 0 521 87763 6 March 21, 2007 9:7 288 In the Common Defense The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (June 12, 2002) 131 addresses the framework, funding, and author- ity for responding to national security health events. The law required the secretary of health and human services (HHS) to develop a bioprepared- ness plan, with benchmarks, addressed to surveillance, laboratories, train- ing, protection of workers, and communications. A legal mandate benefits from having a bureaucratic champion. The Act established a position at the level of assistant secretary responsible for public health emergency pre- paredness, with lead responsibility for matters related to bioterrorism and other public health emergencies as well as federal, state, and local coordina- tion for emergency preparedness. Further, the Act assigned to the secretary of HHS responsibility for the Strategic National Stockpile (Sec. 121) includ- ing its security, placement, and the review and revision of its contents. The Act also reflects congressional efforts to address specific and per- ceived homeland threats. In particular, HHS was required to stockpile a smallpox vaccine, either by actually stockpiling the vaccine, or securing ven- dor agreements to provide vaccine if needed. In addition, HHS was required to make potassium iodide tablets available for stockpiling and distribution to public facilities in quantities to cover populations within twenty miles of a nuclear power plant. In the area of funding, the Act provides authorization and funding for grant programs now administered by DHS, which provide links in the federal-state coordination process, including grants for community and hos- pital preparedness. Significantly, the Act establishes “risk-based” and “pass through” principles for allocating federal funds, principles further developed by DHS. Thus, under the Bioterrorism Preparedness program all fifty states initially received base amounts of funding increased on a pro rata popula- tion basis. Four cities – New York, Washington, Los Angeles, and Chicago – received additional risk-based funding. In addition, to qualify for funding a certain percentage of each grant must “pass through” to the first responder level. In some cases up to 80 percent of the grant must pass through. In addi- tion, the Act’s hospital preparedness programs adopted formulas to increase amounts going to entities with regional as opposed to local responsibilities. According to the DHS, the Department is now largely administering grants on a risk-formula basis. 132 Nonetheless, as the 2006 uproar over DHS des- ignation of potential terrorist targets reveals, where there is funding and safety involved the principle of risk management will remain controversial in implementation and subject to the influence of legislative pressure. Finally, the Act supplemented existing legal authorities to respond to emergencies. For example, the Act streamlined the process for declaring pub- lic health emergencies by executive order. Previously, such declarations were based on the recommendation of a Federal Health Advisory Council and the Surgeon General. However, Section 142 of the Act permits presidential [...]... and the Department of Defense are developing the capability to deploy unmanned aerial vehicles (UAVs) to gather intelligence in the domestic disaster context where 9:7 P1: KOD 052 187 7636Xc09 296 CUFX132/Baker 0 521 87 763 6 March 21, 2007 In the Common Defense human access may be limited.146 One can imagine that this resource would be especially critical in surveying contaminated areas before sending in. .. without their own “eyes on the target,” yet in the realm of infectious disease and certain WMD weapons, speed is essential in containing the scope of the attack and the fallout However, as Katrina illustrated, intelligence is not yet fully integrated into the U.S homeland security function Neither are the redundant, reliable, and interoperable means of communication required to communicate intelligence... and in defense of the law Sometimes the strong personality must sit down for the law, for example, at an interagency meeting where bureaucratic diplomacy may be the order of the day But minutes later, in the face of the deputy secretary or national security advisor, the lawyer must have the courage to insist on attendance at a necessary meeting In short, national security law is as contingent on the. .. embedded in U.S doctrine It is reflected in Northern Command’s area of responsibility, the PSI, and in efforts by DHS to move the point of cargo inspection overseas The concept is an obvious one if one considers the nature of commerce and our imperfect record of interdicting illegal drugs and immigration at the border Maginot lines do not work against terrorist threats any more than they work against mobile... conflicts involving the director of FEMA, designated the “Principal Federal Officer” responsible for all federal coordination, exacerbated the already difficult task of getting accurate information from the streets of New Orleans to decisionmakers in Washington The Principal Federal Officer did not operate within the operational chain of command, or at least a functional chain of command As a result, information... assume the cost or the responsibility of doing so Conversely, more than one agency may react to a problem, undermining a finite resource base Unity of command arises in part from familiarity with process and personality Rather than debating whether FEMA should be part of DHS or an independent agency, the Congress and the president should consider making the agency’s leadership permanent, including its... Slim’s opportunity to test the comparative proposition But they will have their moral courage tested They will be tested sitting at a Principals Meeting when they have to decide when, whether, and how to speak up They will be tested when they must step outside their personalities, loud, quiet, or in between, and step into a different role in order to apply the law more meaningfully The quiet personality... also linger In fairness, the principles embedded in federalism raise difficult issues implicating both the security and the values components of “national security.” The tension is acute because where the law if not the will is ultimately clear with respect to use of the military instrument, the relationship between the federal national security power and state and local police power remains in the twilight... skill In contrast, subordinates assigned to specific issues are expected to devote their attention to a single policy issue and drive that issue up and down the chain of command As in other legal fields, national security lawyers should learn to subordinate matters of ego to the task of meaningfully applying the law In doing so, they will have ample opportunity to learn the maxim that it is often the messenger... staff meetings, and ensuring that they and not the policymaker or the secretariat define what it is the lawyer needs to see National security process is never designed to convenience the lawyer Sometimes it is specifically designed to avoid the lawyer Endurance means having fresh legs in the middle of the night as well as first thing in the morning Some officials will wait until the late night or the weekend . acquiesce in an overwhelming federal response without their own “eyes on the target,” yet in the realm of infec- tious disease and certain WMD weapons, speed is essential in containing the scope of the. security agenda, including bioterrorism response as a federal planning requirement. P1: KOD 052 187 7636Xc09 CUFX132/Baker 0 521 87 763 6 March 21, 2007 9:7 286 In the Common Defense In addition, the directive. the security of the United States will depend in part on the strength and weakness of the next level of defense in the homeland security regime. B. MARITIME SECURITY During the 1 980 s, U.S. Ambassador