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by Josh Filler: Homeland security issues including prevention and protection

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January 2010 Archives
January 02, 2010

The attempted terror bombing of Northwest Flight 253 on Christmas 2009 has rekindled the debate over what tools TSA and other screening agencies around the world need to detect explosives smuggled by would be aviation terror bombers. Perhaps one of the most effective and controversial methods of screening passengers is the full body scanning system that can detect virtually any concealed object on a person. Such scanning systems provide the screener with a silhouette of the naked body of the individual being screened. It is this fact that has caused many to oppose the use of such technology as a violation of personal privacy calling it a "virtual strip search."

The way to maintain privacy is to ensure anonymity. If the screener looking at the picture does not have the name and cannot see the identity of the person they are screening, how is one's privacy violated? Moreover, today's technology allows for the blurring of sensitive areas in the absence of any contraband detected in such areas. The clarity of the picture the screener sees is far from Kodak moment quality and can be made to appear much like a stick figure drawing. In addition, the immediate destruction of the image following the screening, coupled with criminal sanctions for any unauthorized use of such images, would go a long way toward easing the public's privacy concerns.

As evidenced by its use in jails, such technology is an effective method for screening out contraband on a person, including weapons and explosives. However, it is not a silver bullet as it cannot always detect whether an item is dangerous, but simply if an item is present. Additional screening using other technologies and methods to detect and determine the exact nature of the item will still be necessary, such as whether an item is a tube of talcum powder or a tube of explosives. Nor can the scanner detect items hidden in certain body cavities. This is not academic as evidenced by the failed suicide bombing of Saudi Arabia's deputy interior minister in August 2009 where the al-Qaeda assailant hid the bomb in his anal cavity killing the assailant and wounding the minister. There are also reports that the scanner cannot see items concealed under plastic, vinyl, or anything that appears skin like.

In deploying the scanner, protocols for its use will have to be developed. Will all passengers be expected to go through the scanner or just those selected for secondary screening? What if someone refuses? Will that person then be subjected to a pat down search? The problem there is such pat down searches are far less effective given the current rules about where screeners can touch. Indeed, they are often barred from touching the very area the Northwest Flight 253 bomber hid his explosives. To become more effective by loosening such restrictions would result in pat down searches truly becoming an invasion of privacy. Even under today's restrictive pat down rules, isn't a pat down search more invasive and humiliating than going through a full body scanner?

Flying today is hardly a pleasant experience as it is and few of us cheer the need for full body scanners. The scanners are no panacea nor can any absolute guarantee against abuse be offered. The need, however, is a result of the long war we find ourselves in. Despite, or perhaps because of, the enormous amount of resources America and the world have allocated in the effort to secure aviation, al-Qaeda and its affiliates remain determined to attack it. If we are going to secure air travel, we must avail ourselves of the best technology to do so. Despite the controversy, full body scanners are a powerful tool that if utilized properly, and in conjunction with other tools, can go a long way toward securing air travel while minimizing privacy concerns.


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January 06, 2010

This issue of whether FEMA belongs inside the Department of Homeland Security is like a vampire or zombie that never seems to die. Each time you think you've resolved it; the creature leaps from the coffin causing havoc. The latest iteration of this monster has surfaced in the House of Representatives Transportation and Infrastructure Committee. That committee is once again talking about pulling FEMA out of DHS. As for my view on this issue, you can click this link to Government Executive Magazine for more details.

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January 07, 2010

The answer to that question depends on whether you believe Umar Farouk Abdulmutallab is a common criminal and Northwest Flight 253 is a crime scene, or you believe he is an unlawful enemy combatant and Flight 253 is a battlefield. Abdulmutallab didn't pick pocket another passenger or even hit a crew member on Flight 253 on Christmas Day 2009. That's what a criminal might do. Instead, Abdulmutallab smuggled a bomb onboard a jumbo jet in an attempt to blow it up with approximately 300 people on board while the plane was in its final decent over U.S. soil in order to try and kill even more innocent people on the ground. That's what enemy combatants fighting an illegal war attempt to do.

Despite this latest act of war committed in violation of the laws of war, Abdulmutallab will be treated by the Obama Administration as a common criminal and tried in federal court. This decision appears to be based on two factors: the attack occurred inside the U.S. and there is enough evidence to convict Abdulmutallab in federal court. Both miss the mark. The decision to classify members of al-Qaeda should not be governed by which forum provides an opportunity for a conviction, but rather, which system allows for the greatest ability to collect intelligence to defeat the enemy. The fact the attack occurred here, against civilians, is an aggravating factor not a mitigating one.

We have a military commissions system precisely because we are at war. The purpose of using that system is not punitive. It's centered on engaging al-Qaeda in a legal framework that allows us to gather intelligence in a time and manner consistent with war fighting as opposed to criminal justice. Our primary goal with Abdulmutallab must be to gather information on who he is associated with and what other plots might be out there. It is not to build a criminal case against him and yet by treating him as a criminal defendant we hinder our ability to achieve our goal by granting him the right to remain silent and the right to a speedy trial.

The Obama Administration uses military commissions and was right to work with Congress in 2009 to strengthen them. However, the standard employed by the Administration for determining who is held as an enemy combatant and tried before a military commission is incoherent - terrorists who attack the military overseas are treated as enemy combatants whereas those who attack civilians here at home are treated as common criminals. Thus, as the enemy gets closer to America's shores, he miraculously transforms from a combatant to a criminal, and we simultaneously self impose restrictions limiting our ability to defend ourselves, despite the danger actually increasing. However, the law does not command such an approach.

The Supreme Court, in Ex Parte Quirin, the case of the Word War II Nazi saboteurs, one of whom was an American citizen, allowed for the trial of all eight saboteurs to be held in a military commission for committing war crimes on U.S. soil. The saboteurs argued the Constitution required they be held as criminals and tried in civilian court for their offenses. In rejecting such assertions, the Court upheld the government's claim that operating on U.S. territory without a uniform with the intent to strike industrial targets was a violation of the laws of war, rendering the men unlawful combatants subject to trial by military commission. This war with radical Islamists has been called the "long war" and we need a rational and consistent policy for classifying our enemy of today, regardless of where we capture him.

Supporters of civilian trials for al-Qaeda terrorists will no doubt point to the cases of Zacarias Moussaoui, the so-called 9/11 20th highjacker, and Richard Reid, the so-called airplane shoe bomber, both of whom were foreign nationals sent to wage unlawful war against us and both of whom the Bush Administration detained as criminals and prosecuted in federal court. Those were early mistakes in this long war that we should learn from not emulate.

The Moussaoui case is instructive as to the perils of waiting too long to extract intelligence from captured al-Qaeda members. Despite the U.S. government having arrested Moussaoui on immigration charges in August 2001, the FBI was ultimately blocked from searching his lap top on the basis there was insufficient probable cause to do so. As the 9/11 Commission noted, the information Moussaoui possessed "might have brought investigators to the core of the 9/11 plot."

Does Abdulmutallab have similar timely information about another plot or on the location of those who sent him to America? Did he tell the FBI everything before he invoked his otherwise non-existent "right" to remain silent? It is not enough that Abdulmutallab might tell us all he knows months from now through plea negotiations. As for the Reid trial, a statement from the terrorist himself at his sentencing is highly enlightening: "I am at war with your country."

Umar Farouk Abdulmutallab is not an isolated extremist who just decided to try and blow up a jet one day. Abdulmutallab is part of a network at war with the United States that has consistently tried to attack us and our aviation system in particular. Our classifying the terrorist depending on the location of his target and the point of his capture is ad hoc, schizophrenic and dangerous. Treating him as a "common criminal" subject to bail hearings and the like will not degrade or diminish him. Rather, it will serve only to degrade our own capability to combat al-Qaeda and protect our homeland.

January 19, 2010

When a crisis arises, the public wants and expects to hear from its leaders. The timing, tone and information provided by a chief executive will have a dramatic impact on how the public perceives how the government (local, state and federal) is responding to a crisis. Indeed, effective communications is one of the most important responsibilities a chief executive has in managing a crisis. Recent events from the catastrophic earthquake in Haiti to the attempted terror bombing of Northwest Flight 253 to the Fort Hood attack have provided situations where executive communications have been essential and sometimes lacking.

The role of the chief executive, whether an elected or an appointed official, is not to turn into a public information officer. There are systems in place under the National Incident Management System (NIMS) and the incident command system (ICS) to handle that. In fact, executive communications must be integrated into that framework. However, just as a Mayor should not do the job of a press officer by trying to brief on the daily, intimate details of an incident, neither can a public information officer communicate in place of a Mayor, Governor or President of the United States.

The Northwest Flight 253 incident saw President Obama wait three days to speak and instead delegate the role of communicator-in-chief to the Secretary of Homeland Security and the White House Press Secretary both of whom used the now infamous phrase "the system worked" relative to security and response to the attempted bombing. This approach violated two fundamentals in executive communications in a crisis.

First, the country expects to hear from its President early in such a situation, especially one in his first year in office who is still establishing himself in the role of commander-in-chief. Three days is just too long in a 24 hour news cycle. Waiting that long to speak makes doing so look politically forced. Prolonging that moment won't down play the significance of the event, but could downgrade the view as to the effectiveness of the response. Subordinate officials should echo the President and provide greater details as they are known.

Second, be brutally honest. Say what you know, admit what you don't know and own up to errors. Attempting to spin in such circumstances will never work. Leaders must provide an overarching context in which the event has occurred with some details to assist in doing so. However, they must be mindful of too much detail as accuracy is essential and "facts" in the early stages of any event are fluid to say the least. President Obama's reference to flight 253 terror bomber Umar Farouk Abdulmutallab as an "isolated extremist" was factually inaccurate. The "system worked" phrase is one that will likely tail Secretary Napolitano for the rest of her career. Contrast that to when President Kennedy immediately took responsibility for the Bay of Pigs fiasco and his public opinion numbers actually went up! While such a candid approach may not always be enough in a crisis, it will always be a good place to start.

While the situation in Haiti is obviously a foreign event, the proximately of the incident to the U.S. and the deep poverty of that country has caused the U.S. to essentially treat Haiti as a 51st state in responding to the catastrophic earthquake that has devastated the island nation. In this case, President Obama responded quickly with a clear vision for how he wanted the United States to assist its neighbor in need.

In the U.S., if there is one thing that the 9/11 attacks and Hurricane Katrina have taught us is that if all politics is local, so are all incidents, including those that have a national impact. However, understanding how to effectively communicate in a crisis does not occur through osmosis upon being elected Mayor or Governor or appointed to high office. As with most things, training and testing is the best way to get prepared for such a role.

Rudy Giuliani prepared relentlessly for a potential terrorist strike or other disaster inside New York City. However, executives, especially elected chief executives, are still often the least likely to avail themselves of such training and testing due to time management and sometimes ego. This can be a huge challenge for professional emergency managers and public safety officials who have to work with a chief executive unprepared to communicate and lead.

DHS has fostered training and exercises for leaders at all levels of government through the Top Officials Exercise program (now the National Exercise Program), a congressionally mandated bi-annual counter-terrorism full scale exercise, and through Mobile Education Teams (METs), which provides education seminars for governors, mayors and other elected chief executives and their cabinets.

To truly get the attention of elected leaders, the American public must view crisis communications and incident management as a core responsibility for any elected chief executive in this country, similar to crime control, housing and education. States, such as California, have developed training programs for their local elected officials to better acquaint those leaders with their role in a crisis whether it be a terrorist attack or natural disaster.

Trying to lead and communicate in a crisis with no training or simulated experience is as dangerous as trying to fly a plane with no prior time in the cockpit or even the simulator. The consequences can be catastrophic. It is time to acknowledge this simple truth and better prepare our nation by ensuring that those we entrust to lead it are truly ready to do so when it matters most.

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