Homeland Security Watch

News and analysis of critical issues in homeland security

July 29, 2009

CCMRF: Constitutional Consequence Management Response Force

Filed under: Biosecurity,Chemical Security,Homeland Defense,Radiological & Nuclear Threats — by Philip J. Palin on July 29, 2009

Yesterday the House Armed Services Committee, Subcommittee on Terrorism, Unconventional Threats and Capabilities heard testimony on chemical, biological, radiological, nuclear, and high-yield explosives(CBRNE)  consequence management.  (See and hear the video.)

 David Heyman, DHS Assistant Secretary for Policy, set out the CBRNE threat.  Reviewing a list of recent events, Heyman concluded, “We can no longer discuss risk abatement of chemical, biological, and nuclear/radiological attacks as if these types of attack are unthinkable or undoable. U.S. intelligence, and the most recent intelligence around the world, continue to report that terrorists are intent on acquiring CBRNE weapons for use against the United States.”

There is a brigade-size federal active duty element allocated to NORTHCOM as a “CBRNE Consequence Management Response Force”  a/k/a CCMRF. A second brigade is scheduled to be in place by October.  A third by October 2010.  While specializing in CBRNE threats, the same forces could be deployed in response to a variety of events.

In his prepared testimony, General Victor Renuart, the USAF four-star who heads NORTHCOM, explained, “CCMRF is a task force (approximately 4,700 people) that operates under the authority of Title 10. CCMRFs are self-sustaining and may be tailored to any CBRNE event. A CCMRF is composed of Army, Marine, Navy and Air Force units with unique CBRNE training and equipment and general purpose units trained to operate in proximity to a hazardous or contaminated environment. CCMRF capabilities include event assessment, robust command and control, comprehensive decontamination of personnel and equipment, HAZMAT handling, air and land transportation, aerial evacuation, mortuary affairs, and general logistical support to sustain extended operations.”

In October 2008 the American Civil Liberties Union initiated a FOIA request that raised several concerns regarding the CCMRF, including, “The deployment of CCMRF marks the first time an active military unit has been given a dedicated assignment to Northern Command, which was established in 2002 to assist federal homeland defense efforts and coordinate support of civil authorities. It raises important questions about longstanding separation between civilian and military government within the United States — a separation that dates to the Nation’s founding and that has been reiterated in landmark statutes, most importantly, the Posse Comitatus Act 18 U.S.C. Para. 1385.” 

The Posse Comitatus Act forbids federal troops to be deployed with police powers. Following Hurricane Katrina an effort to significantly weaken the Posse Comitatus Act  was initially successful, but the legal changes were subsequently overturned in 2008. The current language is the same originally adopted by Congress in 1878. 

The potential life-saving and order-restoring capacity represented by the CCMRF is widely recognized.  The use of active duty federal troops for this purpose is seen by some as a creeping militarization of the home front.

At yesterday’s hearing the Congressmen — of both political parties – kept coming back to “who’s in charge?”  About nineteen minutes into the hearing, Mr. Smith, the subcommittee chairman, interrupted an explanation of HSPD-5′s intricacies, asking, “Does anyone of those groups have the lead?” 

If there’s a real catastrophe, what’s the real chain-of-command? It is a good question.  The answers, of course, are variations on “Well, it depends.” 

As the hearing proceeded — maybe because of the provisional answers offered – the questions were increasingly directed to General Renuart.  The implicit assumption seemed to be: the man in uniform will be in charge.  Encouraging this impression is a principal reason why uniforms are worn.  

If the General is in charge, then who’s in charge of the General? The prepared testimony of each witness was constitutionally restrained: federal forces will be deployed at the request of Governors to support civil authorities. The  protocols of HSPD-5 and the National Response Framework will ensure effective collaboration across roles and responsibilities.

 But what about when local civil authority has been overwhelmed by the catastrophe?

About half way through the hearing Congressman Kline began his inquiry by stating, “I am still, sort of grappling – and I think all of us are at one level or another – with the fundamental question of who’s in charge.”  The Congressman then reviewed a variety of National Guard and DOD assets and asked, “When are these forces federal, when do they work for the state, when do they work for the Governor, when do they work for the General?”

The General responded, appropriately and accurately, well… it depends.

A bit later Congressman Miller, asked what happens, “if the Governor and the local officials don’t get it; they absolutely have  become overwhelmed — as they did with Katrina – and don’t make the call (to the President) quick  enough?”

There was a pregnant pause before the General responded.  “Well, Mr. Miller, I think  the President ultimately has a responsiblity for the nation to make a determination of the speed at which some event is unfolding.  That is not a NORTHCOM decision.  My role is to ensure that, if I’m asked, to be sure that I have all the pieces in place to be supportive.  So I would defer to the national leadership to make a policy decision as to the ability of an individual state. That’s really not mine to call.”

I expect the General’s answer is accurate… even in its  opacity.  Is it an appropriate answer? In terms of civil-military authority, certainly yes.  In terms of constitutional balance of powers? Probably not.

Funny how the Tenth Amendment can suddenly rise up as if from the dead:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

General Renuart is a practical man.  He wants to do his duty.  In a time of crisis he will be prepared to render protection and care.  How can we allow him to do so with confidence while preserving the practical benefits of local capacity and the constitutional protections of state sovereignty?

The hearing was rather chaste in exposing the Tenth Amendment issue, but the bare skin was there for all to see.  Whether titilating or horrifying probably depends on your taste.

Buried in the prepared testimony — never referenced in open session — was an interesting suggestion for how we might restore some constitutional  modesty and, even perhaps, some honest dignity.  More on this in a Friday post.

UPDATE:

A July 30 New York Times editorial entitled: The military is not the police.

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7 Comments »

Comment by Clinton J. Andersen

July 29, 2009 @ 10:40 am

Actually, The Posse Comitatus Act has changed, since 1878. In 1956 the Air Force was added to the mix, which makes sense since the Air Force wasn’t born until 1948. :-)

The rest of the services fall later under a separate U.S. Code, title 10, with the exception of the Coast Guard, which does use police powers to help secure our borders.

There is a stipulation that allows Congress to give those powers to the military, “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress”. However, there is still plenty of room for improvement and plenty of research that has already been conducted.

Check out one of the following for research already been conducted (there are plenty of options, the leaders just have to decide that they want the change):

Schmidt, C., & Klinger, D. (2006, April). Altering The Posse Comitatus Act: Letting the military address terrorist attacks on U.S. soil. Creighton Law Review, 39(3), 667-693.

Elsea, J. (2005). The Posse Comitatus Act and related ratters: A sketch. Navy Department Library.

Quillen, C. (2002, Spring2002). Posse Comitatus and nuclear terrorism. Parameters: US Army War College, 32(1), 60.

Comment by William R. Cumming

July 29, 2009 @ 11:58 am

The Posse Commitatus should have been cleared up long ago and actually I did not personally think the changes enacted in 2006 and reversed in 2007 (Still not sure of dates?) inappropriate. In fact clear that some of the questions in the above post would have been clearly answered should the changes have remained in place. Why? Posse Commitatus was really designed to prevent the judicial system from being run by the military and to prevent criminal law enforcement by the military. There is authority to assist in WMD INTEL and ops in Title 10 now by the military. So my solution, probably oversimplistic is just to make sure that the active military cannot be used to enforce Title 18 (the US criminal code) or run the judicial system for any STATE or LOCAL governments (and of course Constitutional prohibited from doing the same for the FEDS). The confusion has arisen because of the fears over riot and civil disorder and looting and who can arrest those causing the disturbances. Althought in a Presidentially declared disaster or emergency DOD seeks reimbursement from FEMA for its humanitarian activities it is often the presence of obviously armed troops in uniform that Governors and Mayors sometimes want to be a show of force, since the public generally not familiar with legal restrictions on active duty forces. What is interesting is the total amount of misinformation floating around. Whatever the merits of the General’s answers it is interesting that so far NORTHCOM has been headed by several AF flag ranks and at least one Admiral. Usually these folks are just not as knowledgeable about the military/civilian interfact as the ARMY and NG flag ranks. That is why I think NORTHCOM should always be headed by an NG flag rank as the pinnacle of his/her service. And no civilian can interfere with the military chain of command which does of course also lead back to civilian leadership at the highest level. Usually those rendering humanitarian NOT CRIMINAL LAW ENFORCEMENT assistance that are armed and in uniform show comity to the needs of the citizens they are helping. Part of the problem stems from the absolute difficulty DOJ and DOD have in talking to each other about the legal niceities. For years DOD guidance through its training on MARTIAL LAW was legally erroneous and only corrected in the early 80′s by DOJ review of DOD training materials. This whole thing is much too sensitive to not have thoughtful attention paid by those involved. And now the NYTIMES has revealed that the BUSH ADMINISTRATION has reversed a very sensitive COG issue that before that reversal recognized the President’s role as Chief Executive and separately Commander-In-Chief. And apparently the OBAMA Administration in its innocence did not understand the policy implications of given all of the logistics and communications nitty gritty over COG to the MILITARY.Hey how many White House staff are sensitive to the real parameters of civilian control of the military and military/civilian relationships. If we are the guidepost for other democracies as the oldest and richest democracy (republic) then if the NYTIMES is correct we have blown it and the ignorance of the Bush Administration overturned something that the most thoughtful and knowledgeable of the true conservatives of the Reagan Administration had designed. It was alway a shock to me to find out that the LIBERTARIANs opposed the draft (I was drafted) as representing the apotheosis of intervention of the STATE in the lives of its citizens. Now I understand it. The purposes of the STATE must in fact have the consent of the governed.

Comment by William R. Cumming

July 29, 2009 @ 12:10 pm

By the way because of concerns over a biological attack (shortage of vaccine, etc) I personally wrote a long letter with attachments to AG John Ashcroft after the formation of DHS. That letter (for which no response was ever received) indicated that DOJ should confer closely with the new DHS and of course DOD and understand the implications of the plan GARDEN PLOT which was the code name for military assistance in Riot and Civil disorders. The sociologist have documented in natural disasters (and biologic agents are to an extent natural) that a so-call “Therapu tic Community” forms after the incident/event of neighbors helping neighbors. Maybe that is correct but where the agent is invisable, oderless, and silent maybe not? That is the current question again will Eric Holder as AG now take steps to make sure that all concerned with preventing riots and civil disorders or controlling them know what their legal authority is and their options. Strangely, their is a long stand federal policy of not declaring Stafford Act (or its predecessor acts) for riot and civil disorder based on an internal stuy by DOJ that to do so might just incite more rioting and civil disorder. BUSH 41 Administration at its ending violtated this to some degree for the LA riots in 1992. The declaration was for “FIRE” and so still no declaration ever by the President of a disaster or emergency for riot or civil disorder. Personally I think the STAFFORD ACT impliedly excludes paying for law enforcement based on DOJ written guidance and regulations but this is an item that should be given full oversight by the Congress. The head of TSA in DHS was dismissed once for labeling his organization a law enforcement agency (these actually are defined by DOJ in regulations) but now more and more you see the Secretary DHS adopting law enforcement culture and language. Those in DHS without guns, badges, or uniforms are stepchildren.

Comment by christopher tingus

July 30, 2009 @ 4:35 am

William,

Thank you for sharing such invaluable knowledge and I am hoping that the select few who read this blog and have access to appropriate government staffers who should have this pertinent information forward it to the appropriate parties as they should indeed have the clarity in understanding such….A very valuable input!

Chris

Comment by Shawn Fenn

July 30, 2009 @ 10:26 pm

General Renuart describes the CCMRF’s mission as comprising “event assessment, robust command and control, comprehensive decontamination of personnel and equipment, HAZMAT handling, air and land transportation, aerial evacuation, mortuary affairs, and general logistical support to sustain extended operations.” These are clearly not law enforcement functions. Similarly, the unit’s name includes the phrase “CONSEQUENCE Management” (emphasis mine), not “CRISIS Management.” Again, clearly not the law enforcement/investigative/intelligence side of the house. By all outward appearances, PCA shouldn’t be an issue.

That said, perception is 9/10 of reality. Given how “homeland security” writ large has run roughshod over the theory, the practice, and the very identity of emergency management since 2003 (and substantially diminished the essential distinction between crisis and consequence management), it should come as no surprise that lay people, including the media and elected officials, focus not on the CCMRF’s actual mission and capabilities but rather on fearsome mental imagery. At the risk of revealing my feelings on the FEMA-in-or-out question, this debate plus the wrangling over “who’s in charge” seem to highlight two of the many problems with commingling our emergency management and law enforcement apparatuses.

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August 14, 2009 @ 3:37 am

[...] in any way, but prudent. Who’s in charge? This General answered, "It depends . ." http://www.hlswatch.com/2009/07/29/ccmrf-constitutional-consequence-management-response-force/ [...]

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May 13, 2013 @ 8:01 am

[...] forces which are layered on top of traditional forces. And we have seen the confusion over whether the military is being given the right to become a police force in our own country.  I’m sure you have [...]

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