Assessing how to employ the range of tools available to national security policymakers to cope with 21st century threats to US national security continues to be a topic of debate between the executive and legislative branches of government and those who study and comment on national security issues. The Intelligence Community that exists today is a product of the post-World War II - Cold War international context. Creation of the Central Intelligence Agency (CIA), the National Security Agency (NSA) and other Intelligence Community elements after World War II included very specific prohibitions about intelligence agency involvement in domestic activities (in the homeland). Presidents have issued executive orders prohibiting the assassination of foreign individuals after revelation of presidentially approved plans in the 1960's to task the CIA to target foreign leaders for assassination. Many of the laws and legal guidelines established to govern the activities of intelligence, law enforcement and military organizations were written in the context of an international legal framework in which the nation-state was the only actor. Many of the threats to the US homeland in the 21st century come from non-state actors. A study of homeland defense requires an examination of the role of intelligence and law enforcement as well as the defense community in dealing with threats to the homeland.

Similarly, what legal authorities does the president have to respond to an act of catastrophic terrorism. What roles to state and local civil leaders have? How can the National Guard and Reserve be best utilized?

Moreover, the budgetary and organizational implications of developing a new national security paradigm, on the order of the National Security Act of 1947, will be a major challenge to overcome. The newly created Office of National Preparedness will be an informative case study to watch.

Suggested Reading:

 

Juliette N. Kayyem. "U.S. Preparations for Biological Terrorism: Legal Limitations and the Need for Planning." BCSIA Discussion Paper 2001-4, ESDP Discussion Paper ESDP-2001-02, John F. Kennedy School of Government, Harvard University, March 2001. http://ksgnotes1.harvard.edu/BCSIA/Library.nsf/pubs/2001ESDP2

MAJ Craig T. Trebilcock, USAR. "The Myth of Posse Comitatus," The Journal of Homeland Security, October 2000. http://www.homelandsecurity.org/journal/Articles/article.cfm?article=7

Frank J. Cilluffo. "Cyber Attack: The National Protection Plan and its Privacy Implications," The Journal of Homeland Security, November 2000. http://www.homelandsecurity.org/journal/Articles/article.cfm?article=9

Gregory D. Koblentz. "Overview of Federal Programs to Enhance State and Local Preparedness for Terrorism with Weapons of Mass Destruction." BCSIA Discussion Paper BCSIA-2001-5, ESDP Discussion Paper ESDP-2001-03, John F. Kennedy School of Government, Harvard University, April 2001. http://ksgnotes1.harvard.edu/BCSIA/Library.nsf/pubs/2001ESDP3

"Global Trends 2015: A Dialogue About the Future with Nongovernment Experts." NIC 2000-02, December 2000, Science and Technology section. http://www.cia.gov/cia/publications/globaltrends2015/

Statement Before The Senate Select Committee on Intelligence given by Vice Admiral Thomas R. Wilson (Director, Defense Intelligence Agency). "Military Threats and Security Challenges Through 2015," 2 February 2000. http://intelligence.senate.gov/0002hrg/000202/wilson.htm

Lieutenant General Patrick M. Hughes, USA (Ret.). "A Case for Greater Support for the U.S. Intelligence Community," The Journal of Homeland Security, February 2001.
http://www.homelandsecurity.org/journal/Commentary/commentary.cfm?commentary=4

Emergency Legal Authorities:

Federal Role in Disaster Relief: The Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5121 et seq., called the "Stafford Act")

• If the State requests Federal assistance, the President may declare a national emergency for mobilization of Federal resources in support of State efforts.
• Aid may not be distributed in a discriminatory manner.

Use of Federal Troops for Law Enforcement Purposes: The Posse Comitatus Act (18 U.S.C. § 1385)

• Army and Air Force may not be used for law enforcement. DoD policy extends the prohibition to Navy and Marines.
• National Guard in State-status are not covered by the Posse Comitatus Act.
• Federal troops (incl. Federalized National Guard) may be used for law enforcement if the President invokes the Insurrection Act to quell civil disturbances.
• Other exception includes preventing the loss of life or property during serious disturbances or calamities, and protecting Federal property and governmental functions.

Reserve Mobilization: (10 U.S.C. § 12304(b))

• The President may order reserve units to active duty in response to a WMD incident.

Civil Liberties: (42 U.S.C. § 264, called the "Federal Quarantine Law")

• Public health law is primarily a State concern.
• Judicial decisions indicate that forcible inoculation and quarantine of infected patients may be constitutional.
• SecHHS has the authority to issue regulations that authorize Federal agencies to respond to the spread of a communicable disease across State lines, likely including quarantine of patients, forcible blood draws and inoculations, disposal of bodies in ways contrary to personal beliefs, and related restrictions on liberty.
• SecHHS has not promulgated any regulations under this authority.
• DirCDC may take measures, likely including the list set forth above, to prevent the spread of a communicable disease upon determining that a State is not acting sufficiently to prevent the spread of that disease (42 C.F.R. § 70.2).
• A person who has a communicable disease "in the communicable period" shall not travel from one State or possession to another without a permit from the health officer of the State if such a permit is required under the law of the destination State (42 C.F.R. § 70.3).

Quelling Civil Disturbances: The Insurrection Act (10 U.S.C. § 331 et seq.)

• State and local governments have primary responsibility for quelling rebellions (32 C.F.R. § 215.4(a).
• The President may use the military (including the Federalized National Guard) to quell (1) civil disturbances in a State (upon the Governor's request), (2) rebellions that make it difficult to enforce Federal law, or (3) any insurrection that impedes a State's ability to protect citizens' constitutional rights and that State is unable to unwilling to protect these rights.
• Before committing U.S. troops, the President must issue a proclamation for rebellious citizens to disperse, cease, and desist.
• Some government attorneys believe that the Insurrection Act is subject to a very liberal interpretation.

Martial Rule

• The Constitution charges the President to "take Care that the Laws be faithfully executed" and the Congress to "call forth the Militia to execute the Laws of the Union."
• 32 C.F.R. § 501.4: "Martial law depends for its justification upon public necessity. Necessity gives rise to its creation; necessity justifies its exercise; and necessity limits its duration. The extent of the military force used and the actual measures taken, consequently, will depend upon the actual threat to order and public safety which exists at the time." The President normally announces his decision by a proclamation, which should detail the substance of the martial rule.
• There are judicial decisions and scholarly articles indicating that the President has some meta-Constitutional authority to act in times of national emergency.
• The preconditions for martial rule are unclear, but it is likely that the preconditions for imposing martial rule are satisfied if a crisis threatens to undermine the stability of the U.S. Government.
• The parameters for martial rule are unclear, such as whether martial rule could be imposed over entire swaths of the U.S. or whether martial rule must be confined only to areas in which the crisis is occurring.
• Options for martial rule include, but are not limited to, prohibition of free assembly, national travel ban, quarantine of certain areas, suspension of the writ of habeas corpus [ie, arrest without due process], and/or military trials in the event that the court system becomes dysfunctional.