Tuesday, April 13, 2010

A Concept of Homeland Security

In the continuing dialectic on the relationship of EM and HS the following was produced in 2004:

[Please note that the purpose of this paper is to promote discussion and other “right” answers may well exist]


[To be used in conjunction with the WENN
Diagram that can be obtained by request from the blog owner.]


Historically the civil security mission was a component of both non-military defense of the homeland and military defense of the homeland. In the United States its military defense history is essentially that of the utilization of the armed forces of the United States in domestic situations. In codified law, those operations tie at least in part to 10 USC Sections 331-334. With respect to non-federalized use of the National Guard and State Self-defense forces, see Title 32 of the United States Code. It also referred historically to ensuring that civil disruption did not occur that impacted military operations. See Mary Lawton’s Department of Justice Guidance “Military Support During Domestic Disturbances” (1980) and DOD’s various directives and DOD OP/PLAN GARDEN PLOT (1971 version in update). These include:

1. DoD Directive 3025.1, "Military Support to Civil Authorities (MSCA), " January 15, 1993

2. DoD Directive 3025.12, "Military Assistance for Civil Disturbances (MACDIS), " February 4, 1994

3. DoD Directive 3025.15, "Military Assistance to Civil Authorities (MACA), " February 18, 1997

See also Footnote 1 of the HSTL from the blog owner that gives an organizational history graphically of civil response organizations.


Under the Reorganization Act of 1939, the first reorganization [five in total were adopted] included the Executive Office of the President, including (1) the White House Office; (2) the Bureau of the Budget; (3) the National Resources Planning Board; (4) the Office of Government Reports; (5) the Liaison Office for Personnel Management, and, “in the event of a national emergency, such office for emergency management [italics added] as the President shall determine.” See E.O. 8248 of September 8, 1939 at 3 CFR, 139-43 Comp., p. 576. See also www.disaster-timeline.com


The logical overlap between the subsets of EMERGENCY MANAGEMENT and HEALTH AND ENVIRONMENT are obvious since the protection of people is always stated as one of the fundamental objectives of emergency management. Title 42 of the United States Code encompasses much of the modern era’s emergency management legislation as well as health and environmental statute law. The key operational activities underlying Protective Action Recommendations (PAR’S) include detection, monitoring, decontamination, quarantine, access and re-entry decisions, and remediation and restoration.

One of the most significant post-9/11 statutory enactments is the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Public Law 107-108 June 12, 2002. Effective implementation of this statute may well be a crucial test of federal preparedness for bioterrorism incidents or events. Its mandates for distribution of potassium iodide within 20 miles of fixed nuclear power plants, and its requirement for vulnerability assessments of public water systems gives evidence of its scope.

Additionally, integration of (1) the so-called Federal Response Plan issued pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-107, which amended in part and supplemented in part the Disaster Relief Act of 1974, Public Law 93-288 [both codified at 42 U.S.C. Section 5121 et seq.]; (2) the National Contingency Plan called for by various statutes [See 40 CFR Part 300]; and (3) the Federal Radiological Emergency Response Plan called for by E.O. 12241; mandated by the Homeland Security Strategy of July 2002, the Homeland Security Act of 2002, Public Law 107-296, and Homeland Security Presidential Directive-5 (February 28, 2003) will have to be accomplished together with adoption of any bioterrorism response plans and related preparedness.

It is also instructive that both HHS and EPA received original classification authority post 9/11 for the first time in their history, thus creating at least nominally a national security community that did not previously exist within those agencies or at least expanding on those personnel who operated in a derivative classification environment from the various national security entities.


The Department of Defense in an effort to differentiate its plans and operations from the federal civil sector has chosen the term Homeland Defense. An Assistant Secretary for Homeland Defense now exists and the formation of Northcom also reflects DOD’s current concept of Homeland Defense operations. It is unclear, however, whether any mandate or direction short of Presidential action would involve the various DOD elements that in the past supported the civil agencies unless there is threatened or actual deployment of a weapon of mass destruction. In an historic 20 month gap between the repeal of the Civil Defense Act of 1950, Public Law 81-920 by Public Law 103-337, and the adoption of the so-called Nunn-Lugar-Domenici Act (actually Title XIV of Public Law 94-201, The Defense Against Weapons of Mass Destruction Act) DOD repudiated or ignored hard won lessons learned from the civil defense program that existed from 1951-1994 even though that program had been designed to provide in part non-military defense against strategic nuclear attack.

Now reinventing the wheel, while repudiating almost 200 years of military/civil operations by the Armed Forces, DOD is utilizing through its force protection, installation protection, critical infrastructure protection programs, functions, and activities a go-it alone strategy that allows it to operate on a self-contained basis while ignoring civil agency operations unless called on by the President. Since DOD budget execution authority far exceeds that of the civil agencies for many of the same programs, functions, or activities it is uncertain how this new approach will unveil.

A close reading of delegations with DOD and the Northcom Mission Statements indicates that further developments as to what the military defense of the Homeland will entail awaits the unfolding of time. See various sections of Title 10 [Armed Forces] of the United States Code and their implanting regulations and directives.

It is unclear whether operations of a non-federalized National Guard as an asset for utilization by the Governors will be a routine event or an impossibility given the current up-temp operations of the military.

Each years DOD authorization and appropriation statutes must be reviewed for their impact on homeland security. See most recently (1) the National Defense Authorization Act for Fiscal Year 2004, Public Law 108-136, November 24, 2003; and (2) the Department of Defense Appropriations Act, 2004; Public Law 108-87, September 30, 2003.


The derivation of the term “Homeland Security” may be lost in the fog of time but it is clear given the establishment of DHS by the Homeland Security Act of 2002, Public Law 107-296 (November 25, 2002) that it is considered a civil agency and not a military agency (although given the presence of the uniformed gun and badge elements of DHS and the Coast Guard the internal culture war make it difficult to predict whether the culture will be civil non-uniformed or quasi-military). None-the-less, the set of programs, functions, and activities encompass all the subsets described herein. Because cabinet government is in part a functional arrangement, DHS and its future efficiency and effectiveness can only be determined as to how it relates to the subset functions described briefly by this document and the Wenn diagram.

It is probably defective to equate the set of Homeland Security with DHS but at this point in time there is no choice. The non-military defense of the Homeland is entrusted for good or bad with DHS and until other organizational concepts arise, DHS will either live up to the task or the people of the United States will suffer the consequences.

It is extremely important to review the annual appropriations statute for the Department of Homeland Security. See most recently, the Department of Homeland Security Appropriations Act, 2004, Public Law 108-90, October 1, 2003.


Arguably the Intelligence function as described in the notes on the Wenn diagram is crucial to the future of DHS. At least three other entities would reject the conceptualization of the intelligence subset on the WENN diagram because they believe they should be the subset through which intelligence passes to DHS. Despite the formation of the Terrorist Threat Integration Center, housed at the CIA, there is almost daily newspaper, think-tank, and Congressional debate on the appropriateness of this arrangement.

Overlooked so far by the leadership of DHS is the substantial domestic intelligence generated on a daily basis by its subordinate organization units. This information could well be crucial to those organizations, principally DOD, CIA, DOJ (FBI) that are fighting to be the furnishers of information to DHS.

Each years Intelligence Authorization act must be examined for its impact on Homeland Security. See most recently the Intelligence Authorization Act for Fiscal Year 2004, Public Law 108-177, December 13, 2003 for example.


As stated on the WENN diagram the Law Enforcement subset consists of the enforcement of the criminal statutes. In the federal arena this means Title 18 of the United States Code. It is interesting to not that to-date no analysis of DHS interest in participation in the law enforcement process exists, yet this could be the rock upon which the DHS ships breaks. After all, the first Under Secretary for Transportation Security (DOT) was reported to have been fired in part for his concept of TSA as a law enforcement agency.

In the civil agencies with Inspector Generals most department and agency heads have delegated their criminal referral authority to the statutory Inspector General which have their own independent referral authority. Thus, statutory referrals may well be impacted by the OIG culture within DHS or alternatively the DHS OIG may let the criminal statutes that are implicitly enforce by DHS subordinate units such as Customs, Coast Guard, or the Border Patrol continue in time-honored fashion.

More important to the eventual boundary between law enforcement and homeland security DHS will be how the leadership of the Department of Justice views DHS law enforcement functions and activities. You can be sure that even if DHS does not study carefully the DOJ appropriation process, DOJ is carefully studying the DHS appropriation process. This is facilitated by the fact that DHS has its own independent appropriation statute, while DOJ is still mired in with State, Commerce, etc.


It is not entirely true that resources, shown on the WENN diagram as an encompassing set, are finite in the conceptual context of Homeland Security. Because of the federal budget process instead of a zero sum game, sometimes competitive organizations will all expand their turf, influence, or budget execution authority. But given the current climate in Washington it is true that competition for resources is fierce. Perhaps most important at the moment is the internal robbing of Peter to pay Paul with the DHS itself. Nonetheless it is the external competition for resources that is most important.

Additionally, given a large-scale terrorist event or employment of a WMD, the resource demands could be enormous. It is interesting that none of the plans scheduled for integration have a publicly announced planning basis. What is meant by this statement? No plan could ever encompass every contingency. Therefore it must be designed based on risk analysis and threat information to be effective and efficient in a large scale-event that is sufficient in size that operations could be scaled up for a larger event. Additional resources, personnel, equipment, supplies, funds, logistics must all be capable of rapid expansion. So far the National Response Plan shows no evidence as to what its real planning basis is today or tomorrow. Also the so-called NIMS, National Incident Management System (March 1, 2004) is silent as to how it will operate in multiple events.

There is also a policy element in resource decisions. Perhaps the toughest one made in the United States was by President Truman during the Korean War. He determined that DOD would receive the bulk of the U.S. concrete supply for Korea even though it was critically needed to protect against ravaging floods in the mid-west. A parallel event occurred in the former Soviet Union when the domestic concrete supply was substantially diverted to encapsulate the melted reactor at Chernobyl.

Interestingly, only one statutory scheme survives from the great mobilizations of WWII and Korea, namely the Defense Production Act of 1950, as amended. See 15 CFR Part 700. This statute allows the federal government to stand first in line for the output of the nation’s factories and services. To acquire resources, the only other vehicle is direct budget execution authority for contracting for goods and services. It should be noted that while goods and services may be prioritized under the DPA by the federal government, or perhaps allocated under other authority, no statute can expand resources in an urgent situation, so that detailed planning must exist on a standby basis.