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February 2010 Archives
February 01, 2010

The crisis in Haiti has left many wondering who's in charge down there when it comes to responding to the earthquake that struck the island nation just under three weeks ago. It's a legitimate question given that the Haitian government and infrastructure collapsed as a result of the disaster. It also raises questions about how the United States would manage such a catastrophe. Who would be in charge?

The answer to the question of "who's in charge?" during a major disaster in the United States is no one person or agency is ever in charge of all aspects of responding to a catastrophe whether it be an attack similar to 9/11 or a natural disaster such as Hurricane Katrina. When the founding fathers signed the Declaration of Independence and later established the Constitution, one of their fundamental objectives was to ensure that no one person was ever "in charge" in the United States. The founders set up numerous roadblocks to central power by spreading power and authority within and across multiple levels of government and directly to the people. It is a masterpiece in limited government, but it also raises serious challenges when a major domestic crisis hits.

It is odd that we should expect a federal democracy to suddenly pivot into a quasi central dictatorship during major disaster operations. Attempts to centralize power often create more problems than they solve. The post Katrina expansion of the President's power to federalize the National Guard during a natural disaster or other emergency without the Governor's consent, outside those already covered under the Insurrection Act, was later repealed because that expansion actually blurred the lines of authority between the President and the Nation's Governors in terms of who would manage the Guard in such circumstances.

In truth, many confuse their desire for someone to be in charge with a need for someone to provide leadership. On September 11, 2001 Mayor Rudy Giuliani exhibited leadership and led the city's response, but was no more in charge of the National Guard troops any more than President Bush was in charge of the fire fighters at Ground Zero or New York Governor George Pataki was in charge of the FBI. On the grounds of the Pentagon that day, the incident commander was not the Secretary of Defense or a general or an admiral, but was instead the local Arlington County Fire Chief. However, this did not give the fire chief command authority over U.S. troops on the scene. The better question to ask is how do we integrate different agencies from multiple levels of government to effectively respond when a major crisis hits?

Both the National Incident Management System (NIMS) and National Response Framework (NRF) are the chief mechanisms by which the U.S. seeks to overcome its fragmented, federal system of government and evolve into a coordinated response to major disasters. Structures such as unified command and incident command help different agencies and levels of government achieve integration. However, they do not create a system of unitary command whereby a single chief executive wields command authority over all aspects of an incident and then delegates through directives, such as the National Command Authority for the purposes of war fighting. Mayors don't work for Governors and Governors don't work for the President, etc.

Answers to critical questions such as who is in charge of which branch of a given level of government, and which agency has the responsibility for a given objective and who is supporting that lead agency during a crisis, will vary depending on the nature of the incident and where it occurs. The principles and systems outlined in the NIMS and the NRF are designed to make the process of integrating the activities of those agencies a much smoother one, but it will rarely be seamless. Federalism is intentionally difficult and disasters are always chaotic. However, the more training and testing around these systems from tactical operators up to chief executives the better. In addition, within each level of government every effort should be made to clarify roles and the chain of command to ensure that responsibilities within and across agencies are crystal clear on the day of a disaster.

Intergovernmental roles and responsibilities are among the most misunderstood aspects of disaster management in particular and homeland security in general. To ask repeatedly "who's in charge?" is to fundamentally misunderstand our federal system. Rather than trying to find an omnipotent commander where there is none, it is more appropriate to provide leadership and reach a clear and valid understanding of roles, responsibilities and capabilities across levels of government to improve our nation's response when the next major disaster inevitably strikes.


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February 03, 2010

On Monday, the Obama Administration released its proposed 3.8 trillion FY 2011 budget of which roughly $4 billion is slated for state and local homeland security grants and programs. What is obvious from the start is how little the Administration proposes to cut from these state and local programs. Many expected deep cuts given the huge $1.6 trillion federal deficit projected for FY 2011. The Administration proposes to cut $164 million from last year's total of $4.165 billion leaving just over $4 billion for FY 2011.

Despite the limited overall cuts, there are several programs that are slated for termination including, Citizen Corps, Metropolitan Medical Response System, Interoperable Emergency Communications Grants and Real ID grants. However, virtually all of the activities funded by these grants are eligible under other grant programs that are set to receive an increase in funding such as the Urban Areas Security Initiative and State Homeland Security Program.

At $1.1 billion, the Urban Areas Security Initiative (UASI) is set to receive a $213 million plus-up from last year, but before anyone gets too exited read the fine print. $200 million of the new UASI funding is set for "security resulting from terror-related trials." That turns out to be roughly the same number the NYPD has said it will cost to secure one year of the Khalid Sheikh Mohammed trial in lower Manhattan. However, as of now, it seems highly unlikely such a trial will occur in New York City if it occurs in the U.S. at all. What happens to that $200 million if no trials or less costly trials occur will have to be worked out in the budget process. This is the first time in the UASI program's history that an earmark for special event security has been proposed as part of its budget.

While Operation Stonegarden, the program designed to fund state and local border security operations in coordination with the U.S. Border Patrol, is set to be zeroed out from its $60 million last year, in truth it is simply moved into the State Homeland Security Program (SHSP) at a rate of $50 million. The entire SHSP is set to receive just over $1 billion.

Emergency Management Performance Grants see an increase of $5 million over last year with a total request of $345 million, while the Emergency Operations Center program is set for zero funding in FY 2011. The Regional Catastrophic Preparedness Grant Program is proposed at $35 million, the same as last year, despite many predicting it would be zeroed out. The Port Security Grant Program and Transit Security Grant Program are each slated to receive $300 million with the Assistance to Firefighters Grant Program taking a $200 million haircut from last year at $610 million for FY 2011.

It should be noted that these numbers are simply the opening salvo in a long and sometimes twisted dance between the executive and legislative branches of government. The FY 2011 budget won't be passed before October 1, 2010 and a lot can change between now and then in an election year. If the past is any indication, Congress will likely restore some, if not all, of the programs the Administration slated for termination, e.g., Citizen Corps. However, given the fiscal crisis at the federal level, Congress might actually cut even deeper into these programs depending on the direction the political winds are blowing come budget voting time. Either way, the Administration's proposal is where we start.

Finally, the following is a link to the FY 2011 DHS Congressional Budget Justifications submitted by the Administration and released on Monday. A chart listing the state and local programs is on page 2,941.


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February 08, 2010

Six weeks after being interrogated for 50 minutes, would-be Northwest Flight 253 bomber, Umar Farouk Abdulmutallab, has once again started talking to the FBI. This is good news, sort of. While getting information from Abdulmutallab is far better than his silence, there are three reasons not to cheer too loudly.

First, the fact that Abdulmutallab is talking now is the best evidence we have that he did not tell us everything six weeks ago before he was read his Miranda rights. Hopefully, the next time we capture foreign al-Qaeda operatives sent to the U.S. to wage illegal war we will not repeat the mistake of bestowing the right to remain silent upon our enemy at capture. In fact, that time may be upon us as senior intelligence officials warned Congress last week that an attempted attack against the homeland over the next three to six months was "certain."

Second, whatever Abdulmutallab is telling the FBI may or may not be still valid. Information has a shelf life and Abdulmutallab's capture six weeks ago was known worldwide. Therefore, those who sent him to the U.S. knew immediately that he was compromised and could respond accordingly. That is why it was so important to interrogate Abdulmutallab immediately and at length with U.S. intelligence operatives steeped in the knowledge of al-Qaeda in the Arabian Peninsula and not for 50 minutes by a few local FBI agents who happened to be the first on scene.

Third, the fact that we all know he is speaking again means al-Qaeda knows he's speaking again, which could undermine the value of the very information he's providing. To the extent al-Qaeda had let its guard down even slightly it will be back on its heels now that they know Abdulmutallab is talking. What legitimate security reason was there for the White House to leak Abdulmutallab's cooperation and the method used to get him to do so (his father was apparently flown to the U.S. to talk some sense into his son)? It appears merely political in order to shoot back immediately at Administration critics on the handling of Abdulmutallab as a criminal instead of as a combatant.

President Obama has rightfully said we are "at war with al-Qaeda" and that he will do "whatever it takes to defeat them." What it takes is actionable intelligence. Bestowing the constitutional right to remain silent upon captured foreign enemy combatants is directly at odds with that fact and the President's declaration. This is not a debate over enhanced interrogation techniques such as water boarding or slapping, etc. It's simply about not unilaterally shutting down the interrogation techniques the President has approved, in order to win the war he so rightly said we are in.


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February 15, 2010

Recently, Dr. James Carafano of the Heritage Foundation wrote a piece entitled Lay off Napolitano and the Homeland Security Department, which includes a run down of which federal agencies dropped the ball in the Christmas Day flight 253 "panty bomber" case. In his analysis, Carafano concludes that "none of the responsibility for keeping the attempted killer [Umar Farouk Abdulmutallab] off the plane rests with the Department of Homeland Security." This is a remarkable statement primarily because it's true, which raises a serious question: How is it we have a Department of Homeland Security that is not actually responsible for much of our homeland security?

When DHS was created it was marketed as a consolidation of key counter-terrorism agencies and functions that had previously been spread incoherently throughout the government. However, in the end, while several agencies and functions did come into DHS, as outlined in Carafano's article, all too many did not. This includes issuing visas, (State Department), managing the No Fly List, (FBI), and serving as the hub for homeland security intelligence, (National Counter Terrorism Center). All of this has caused confusion from the start, which Congress and both the Bush and Obama Administration's have compounded by making the DHS Secretary the face of homeland security for appearances, but in function relegating DHS to junior partner in the conglomerate of federal counter-terrorism agencies.

Perhaps no case better exemplifies the disconnect between DHS and the larger homeland security mission than the decision to keep the FBI out of the new department. Even before the flight 253 attack, Fox News ran a story outlining the internal fighting between the FBI and DHS on matters involving information sharing with state and local law enforcement generally and the recent Naji Bullazazi case in particular.

Fear and Chaos

In 2002, when the creation of DHS was being debated, the issue of whether the FBI should be inside the new department garnered much attention. Some would argue the FBI fought as hard against becoming a part of DHS as it has in fighting al-Qaeda. All kidding aside, why did the FBI resist going into DHS back in 2002? Two reasons perhaps best summarize the answer: chaos and fear of the unknown.

To understand the FBI's fears of going into DHS one need only look to the U.S. Customs Service, or rather the former U.S. Customs Service. The Customs Service had been intact since 1789, but upon its entry into DHS the U.S. Customs Service as we knew it is gone, split into two parts with its investigators now working with former INS investigators at the new Immigration and Customs Enforcement and its inspectors working with the Border Patrol at the new Customs and Border Protection.

In addition to the FBI's fear of being disbanded, there was the inevitable chaos surrounding the establishment of DHS. In 2002, the Bureau was going through very painful reorganizations of its own and the weight of the two events, internal reorganization and external placement in a new department, may have proven too much for the FBI while it was being charged with preventing the next attack inside the homeland.

A Conflict of National Security Interest

Despite the FBI's fears, there is an inherent conflict in having the primary responsibility to prevent and protect against terrorism separate from the primary responsibility to investigate and counter terrorism. Indeed, the primary mission of the FBI is to "protect and defend the United States against terrorist and foreign intelligence threats." Under the Homeland Security Act of 2002, the primary mission of DHS is "to prevent terrorist attacks within the United States." However, the 2002 Act goes on to specify that, "primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over acts of terrorism." That clause, coupled with the FBI being kept out of DHS, has been a major factor in the division between DHS and the means to carry out its mission.

Protection versus Investigations

The U.S. Secret Service, a DHS component, actually presents a case study on the issue of separating investigations from security, as well as what the FBI's placement in DHS could have looked like. Under the Homeland Security Act, the Secret Service was placed into DHS with the caveat that it had to be "maintained as a distinct entity within the Department" meaning it could not be disbanded the way Customs was.

As a law enforcement agency, the Secret Service is unique in many ways, particularly in that the success of one its core missions, protecting the President, Vice President, etc. (protectees) is achieved if it prevents attacks against those protectees. The purpose of investigating all threats against the President is to prevent the threats from materializing into actual attacks. No investigation is judged a "success" if a President is assassinated and the assassin is subsequently arrested, prosecuted and convicted. Coincidentally, the FBI leads the investigation into such actual attacks.

In its 1964 report on the assassination of President Kennedy, the Warren Commission, in evaluating the different federal agencies and their respective roles and responsibilities in protecting the President, noted that removing the responsibility for investigating threats against the President from the Secret Service and placing that function in a different federal agency, notably the FBI, could undermine the Secret Service's fundamental role of protection:

It is suggested that an organization shorn of its power to investigate all the possibilities of danger to the President and becoming merely the recipient of information gathered by others would become limited solely to acts of physical alertness and personal courage incident to its responsibilities. So circumscribed, it could not maintain the esprit de corps or the necessary alertness for this unique and challenging responsibility.

Concerning the flight 253 attack, Secretary Napolitano recently told Congress that DHS is largely a "consumer" of intelligence when it comes to homeland security. This is correct and precisely the situation the Warren Commission warned against concerning the Secret Service. The decision keep the FBI out of DHS has effectively separated prevention from protection where the protectee is the United States itself.

No Silver Bullet

Placing the FBI in DHS would not miraculously remove all of the conflicts over jurisdiction, roles and responsibilities between the Bureau and the current DHS operational components. The FBI has had numerous such battles over the years with sister Justice Department agencies including the DEA and ATF. Battles over jurisdiction and turf are an art form in Washington, particularly within the intelligence and law enforcement communities, regardless of where they sit on an organization chart.

Nonetheless, if we truly wanted a single agency whose primary mission was the protection of the homeland from terrorism, placing the FBI in DHS would have made that aspiration closer to a reality. It also would have more closely aligned federal law enforcement organization with state and local law enforcement organization, which more often separates the prosecutors from the police and investigators.

Conclusion

Organizational charts do matter. Clear lines of authority and responsibility are foundational elements for the success of any entity. Since its inception, DHS has had to deal with federal agencies and authorities necessary to carry out the homeland security mission being kept outside the department. The flight 253 case is just another reminder of this fact.

While DHS does play an important role in the current homeland security structure, it is a far cry from how it was marketed during its founding, as well as how it's perceived by the public today. This adversely impacts both public confidence in the department and actual operations.

Whether federal agencies or functions are ever consolidated in the department charged with leading the unified national effort to secure the homeland is anyone's guess. In the meantime, the disconnect between the homeland security mission and the department established to lead it will continue.


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February 22, 2010

Last week's shocking site of a commercial office building in Austin, Texas engulfed in flames and thick black smoke, after having a small plane intentionally slam into it, provided a chilling reminder of the 9/11 attacks. Given the similarities between 9/11 and what happened in Austin, this most recent incident has caused many to ask if the crash was an act of terrorism or a crime. The White House has taken a wait-and-see approach depending on the outcome of the investigation, while the chief of police in Austin has called it a crime and not an act of terrorism.

The debate over crime versus terrorism misses the larger point and distinguishing factor between September 11, 2001 and Austin, Texas, February 18, 2010. The attack in Austin that killed one, in addition to the attacker, appears to be an act of terrorism. However, unlike the 9/11 attacks, the incident in Austin was likely not an act of war or war crime signaling a strategic threat to U.S. security at home and abroad. While all terrorism is a crime, every crime is not act of terrorism, nor is every act of terrorism an act of war or war crime, just as every act of war is not an act of terrorism.

Federal law defines an act of war, in part, as "armed conflict between military forces of any origin" and the term "domestic terrorism" as activities that occur primarily inside the U.S. that involve "acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, appear to be intended to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction." Federal law goes on to define war crime as any number of acts committed during armed conflict including, murder, rape, mutilation, as well as, through incorporation of elements of the Hague Convention, "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended."

The 9/11 attack was clearly a war crime, which followed a declaration of war from al-Qaeda and resulted in the U.S. engaging al-Qaeda and its affiliates in a global armed conflict. The flying of commercial aircraft into buildings on 9/11 caused NATO to invoke Article 5 of the North Atlantic Treaty, which states that an attack against one is an attack against all. The former Soviet Union never achieved such an outcome in 50 years of the Cold War. The nature of al-Qaeda's attacks, by non-uniformed combatants against civilian and military targets, doesn't make our fight any less of a war, but instead demonstrates our enemy's consistent violation of the laws of war.

Joseph Stack, the man who is alleged to have flown his plane into the Austin building, and who burned his own home prior to doing so, appears motivated by several factors, including a deep hatred of the IRS. The Austin Statesman newspaper has posted what it believes to be Stack's suicide note from the internet in which he rails against the IRS, Catholic Church, major corporations, capitalism, bailouts, unions, the American people, and manages to praise communism in his closing. As for his intent, the following passage best summarizes it:

"I know there have been countless before me and there are sure to be as many after. But I also know that by not adding my body to the count, I insure nothing will change. I would only hope that by striking a nerve that stimulates the inevitable double standard, knee-jerk government reaction that results in more stupid draconian restrictions people wake up and begin to see the pompous political thugs and their mindless minions for what they are. Sadly, though I spent my entire life trying to believe it wasn't so, but violence not only is the answer, it is the only answer."

The above passage would seem to fit with a domestic criminal act "intended to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction" as set forth in the definition of domestic terrorism. The fact that Stack's attack is unlikely to actually affect the conduct of the government does not diminish his intent to do so. Of course, it's possible the internet posting is a fraud and Stack is simply a mentally deranged individual who flew his plane into a building.

At most, our reaction to the Austin event may involve greater scrutiny of general aviation and small aircraft in particular, which has long been the soft underbelly of aviation security. It will almost surely not involve the use of military force against any foreign entity or an invocation of the Insurrection Act here at home. Stack appears to be a true lone wolf terrorist. His conduct, while depraved, does not directly impact the national security of the United States.

Terrorism can come in many forms. What primarily separates general crime from terrorism is the intent of the actor. What often separates or in certain cases escalates an act of terrorism to a war crime is the nature of the attacker, and the target and impact of the attack, along with the response thereto. Unfortunately, there is no universally recognized set of definitions for most of these terms. Nonetheless, the attack in Austin was clearly a crime and probably an act of domestic terror as well. Unlike 9/11, that is as far as it likely goes.


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