Homeland Security Watch

News and analysis of critical issues in homeland security

May 14, 2009

Homeland defense: a Pandora’s box of unanswered policy questions

Filed under: Congress and HLS,Homeland Defense — by Philip J. Palin on May 14, 2009

Presidential nominees receive a set of questions from “their” Senate Committee in advance of testimony.  In all but a few nominations — for example, supreme court justices — both questions and answers are rather pro forma. 

Pro forma does not mean unimportant.  The questions serve as markers for the Committee — or individual members — to signal their priorities.  For oversight committees the written Q&A is the beginning of a give and take that will continue while the nominee holds the position.

Many of the questions recently asked of Paul Stockton,  the President’s nominee for Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs, related to roles within DoD, between DoD and the Department of Homeland Security, relationships with the National Guard, with the States, and so on. This collection of questions and answers highlights the complicated matrix of players, authorities, and responsibilities that make up homeland security. Today, for example, Secretary Napolitano is in Colorado Springs meeting with General Gene Renuart the head of USNORTHCOM.

The Committee questions I found most interesting are collected below.  In the original document these questions are scattered, but taken together may suggest a pattern of concern by the Committee.  In this case the questions — and their ongoing implications — may be more important than any current answer.

The Secretary of Defense has issued guidance to establish 3 CBRNE Consequence Management Response Forces (CCMRFs) by October 1, 2010. Please provide your understanding of the roles and capabilities of the CCMRFs. Do you have any concerns about the ability of the Department to implement the Secretary’s direction to create the three CCMRFs on the prescribed schedule?

If confirmed, what would be your role with regard to the oversight, training, and employment of the CCMRFs?

Concerns have been raised about CCMRFs having a possible peacetime role that is inconsistent with other laws (such as Posse Comitatus). Do you agree that the purpose of CCMRFs is as a DOD support element for CBRNE incidents, and not for peacetime or civil disturbance missions?

There is currently considerable debate about the role the National Guard should play in defending the Homeland and in providing civil support assistance in Homeland security missions. The Commission on the National Guard and the Reserves recommended that the National Guard and Reserves be given “the lead role in and form the backbone of DOD operations in the homeland. Furthermore, DOD should assign the National Guard and Reserves homeland defense and civil support as a core competency consistent with their warfighting tasks and capabilities.” What role do you believe that the National Guard and Reserve should have in Homeland defense, as compared to the Active Component?

The Department of Defense has a mission to provide support to other federal agencies in the event of a domestic incident that requires a federal response, if directed by the President or the Secretary of Defense. The Posse Comitatus Act prohibits military personnel in a federal status from engaging directly in domestic law enforcement “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Use of National Guard personnel in a state status is not prohibited by this act, but the use of military personnel, including the National Guard in a Federal status, is prohibited.

What is your understanding of the legal issues and authority associated with using National Guard and Reserve personnel in security roles within the United States?

In your opinion, does the Posse Comitatus Act (18 U.S.C. § 1385) or chapter 18 of title 10, U.S.C. (which regulates the use of the armed forces in support of civilian law enforcement and related activities) require amendment to deal with the present homeland security situation?

Under what circumstances do you believe that it is appropriate for the Department of Defense to provide assistance to law enforcement authorities in response to a domestic terrorist event? What about a non-terrorist event?

None of these are new issues.   Most of the issues are far from having a consensus answer.  Many of these questions are a kind of Pandora’s box of policy problems for ongoing attention.  Raising the question is helpful to keeping the issue on top of the list for both the Committee and the nominee.  Trying to provide an entirely complete answer, especially in public session, would open the box and release an army of curses on  the Committee and — especially — the nominee.  This is usually understood by all involved.

On Tuesday, though, Senator McCain found Mr. Stockton’s answers to some of the Latin America related questions “lacking.”  Here, perhaps, is an example:


In the past few years, Bolivia has experienced extreme political unrest and, lately, President Morales has taken some positions that could complicate U.S. relations with Bolivia. How do you assess the situation in Bolivia and, if confirmed, how would you seek to accomplish the goals of combating drug trafficking and enhancing military engagement goals?


The situation in Bolivia is of concern. I have not had the opportunity to review the existing DoD plans, approaches, and actions for Bolivia. If confirmed, one of my priorities will be to review such plans, approaches, and actions and make recommendations to the Under Secretary of Defense for Policy.

I understand a new set of answers to the questions of interest to Senator McCain will be provided. The lid on Pandora’s box will, however, be kept closed and the nominee will be confirmed to the position for which he is highly qualified.  Along the way the ranking member and his staff has made a point regarding their role in oversight, the minority’s continuing place in the process, and the ranking member’s own place.

The complete original set of advance policy questions and answers can be found at the Senate Armed Services Committee website (pdf).

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Comment by William R. Cumming

May 14, 2009 @ 10:17 am

Assuming Professor Stockton’s confirmation it is evident from the above post that the position in question is a crucial one for protecting our Constitution and democracy (republic)from all enemies foreign and domestic. Good luck to Paul!

And by the way Posse Commitatus law has been amended inferentially to allow WMD assistance to local law enforcement among other things. It should also be made clear that the law applies to enforcement of STATE and LOCAL criminal law enforcement only. Its real design was to prevent and end the military from running the criminal courts in the 11 states of the former Confederacy during the period called “Reconstruction.”

Comment by William R. Cumming

May 14, 2009 @ 10:22 am

Be interesting to know exact status of formerly named “Civil Response Teams” composed of National Guard forces that were created in response to the Nunn-Lugar Act (Title XIV of the 1996 Defense Authorization law) and designed to assist in WMD response? These teams have undergone name changes several times but last I heard there were 35 in various states of training and preparedness.

Comment by Jason

May 15, 2009 @ 7:07 am

Right now there are 55 WMD CSTs deployed – one to every state, DC, and three territories, one extra team in California. I believe that 52 have been “certified” as fully equipped and ready to operate, not sure where the three others are. Congress passed legislation to add two more teams, one more for New York (because it’s so important, just ask them) and one more for Florida (because that’s where the first anthrax attack was – even though it only killed one guy down there).

I would dearly love to see the CCMRFs get killed off for the duplication and overkill that they represent, plus the fact that the plan is to have only one active duty force and the other two are Reserve/Guard filled (i.e., not standing by waiting for the alarm to ring). Plus the second and third CCMRF fielding/funding is years away because frankly the Army can’t afford the diversion from the Big Game.

Comment by William R. Cumming

May 15, 2009 @ 9:58 am

Thanks Jason and agree appears to be overlap! Is it just NORTHCOM wants to be a player and not just have a shiny new HQs staffed with hundreds of civil agency and department liaisons?

Comment by Arnold

May 15, 2009 @ 11:52 am

Putting aside analysis of the threat for the moment (i.e. what kinds of events would require such a standing force), I’m not sure where exists overlap or duplication with the CCMRFs.

CSTs and CERFPs represent specialized capability but don’t add much in the way of capacity. In a truly large event that overwhelms local, state, and EMAC assistance, what federal units exist that could arrive on scene under 72 hours that would provide manpower?

Comment by William R. Cumming

May 15, 2009 @ 12:31 pm

Good question Arnold and of course there is the specially trained Marine unit to rescue Congress that always gets funded and is quite capable.

The NEST teams and nuclear response capability that once existed at DOE now that DHS takes it over operationally when actual incident or event has really lost capability and not properly funded or trained. I have never seen the interagency MOU’s or MOA’s or whatever that exist between DHS and DOE on this crossover and its criteria–where, what, who, why, when etc. but if it exists should be an interesting document to give insight on how the federal government would bring about technical response. Most of the RADEF programs (radiological defense programs) funded by FEMA even to the point of calculation and calibration of dosimetery were ended by James Lee Witt over the objection of the National Security Council staff. I know because I tried to reverse the decision.

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