Homeland Security Watch

News and analysis of critical issues in homeland security

September 15, 2009

The Rubicon once seemed so far away

Filed under: Homeland Defense,State and Local HLS,Strategy — by Philip J. Palin on September 15, 2009

Six powerful Congressmen and Senators of both major parties request a GAO study of  NORTHCOM’s “coordination when exercising in collaboration with the very State, local, and tribal governments that the Command was created to support.”  Then the study’s results are published on the eighth anniversary of the September 11 attacks.

Might we discern an agenda?

Following are three GAO findings.  Each is a quote, but I have pulled the quote out of a longer narrative.  I then add a personal comment in italics. (You can see the original report courtesy of the House Homeland Security website.)

Thus sayeth GAO, “One of DOD’s challenges is adapting its exercise system and practices to accommodate the coordination and involvement of other federal, state, local, and tribal agencies that do not have the same kinds of practices or level of planning effort.”

Most other jurisdictions or agencies don’t have money or trained staff to effectively hold their own with NORTHCOM’s exercise development capacity.  The financial ratio is hundreds-to-one, the NORTHCOM staff advantage might be close to the same.

Thus sayeth GAO, “NORTHCOM also faces the challenge of balancing its training objectives with those of state agencies and organizations, particularly given the limited resources and funding states have available to exercise. While state and local governments seek to exercise their first responder capabilities before having their resources overwhelmed and needing to seek federal assistance, NORTHCOM’s goal is to exercise its capability to provide support to civil authorities when local, state, and other federal resources are overwhelmed. As a result of this challenge, officials from 5 states told us that all of their needs were not fully met during the exercises, for example, due to large-scale, unrealistic scenarios that overwhelmed the states’ resources before they had the opportunity to exercise their training objectives.”

This reality, which the language above makes clear enough, has a troublesome follow-on implication. Law, doctrine, and DOD training emphasize defense support for civil authority.  But because DOD exercises simulate the essential collapse of state and local civil authority, it is more accurate to say exercises are aimed at restoring civil authority.  The more difficult and helpful exercise would be to simulate disasters where federal military assets are deployed at the request of the Governor(s) and where local and state authority remains partially — even unpredictably — intact.  This will exercise unity of effort in a manner that will challenge the military chain of command to more effectively adapt to the tactical, operational, political, and constitutional realities of domestic service.

Thus sayeth GAO, “Inconsistencies with how NORTHCOM involves states in planning, conducting, and assessing exercises are occurring in part because NORTHCOM officials lack experience in dealing with the differing emergency management structures, capabilities, and needs of the states. Inconsistencies are also occurring because NORTHCOM has not established a process for including states in exercises, such as consistent procedures for requesting state involvement in exercises through DHS/FEMA or the National Guard Bureau. Without an informed and consistent process, NORTHCOM increases the risk that its exercises will not provide benefits for all participants, impacting the seamless exercise of all levels of government and potentially affecting NORTHCOM’s ability to provide support to civil authorities.”

Well, yes… but GAO’s language is so careful, it is potentially misleading.  It is reasonable to wonder if AFRICOM might show greater restraint and do more to involve and upgrade local capacity than does NORTHCOM. There is a passive aggressive aspect to NORTHCOM that reflects unresolved issues — urgently needing resolution — of having a fully functioning Combatant Command “responsible” for the United States.  Better processes are certainly needed, but the issues go much deeper.  NORTHCOM was created quickly, spontaneously emerging from the forehead of Rumsfeld, so to speak.  There is a Combatant Command clubhouse in which careerists at Colorado Springs will naturally want to play.  No disrespect need be implied by insisting NORTHCOM should not be part of that clubhouse.

Full disclosure: Until my semi-retirement in June 2008 I worked closely with a NORTHCOM function related to training and exercising.  Every person with whom I worked recognized the  problems outlined above — though they may be uncomfortable with the language I use.  They actively invited more involvement of state, local, and tribal authorities.  They welcomed the initiative of such authorities.  They were ready to adjust exercise designs and training regimes to involve more locals and more non-military federal personnel.

But it was like an NFL team welcoming the local high school team to play with them.  The prep team might initially be excited by the prospect.  But the match-up would usually be so uneven as to be dangerous… for all involved.

Strategically and operationally — but most especially constitutionally — this is an issue that requires (among other measures) long-term, very significant upgrades to state, local, and tribal capacity in training, educating, and exercising.

(The headline references the Rubicon River.  Ancient Roman law forbade any Legion to cross the river, roughly 200 miles north of Rome, without specific permission of the Senate.   The law was designed to minimize the Republic’s risk of internal military mischief.  The Rubicon was famously crossed by Julius Caesar and his Gallic Legions in 49 BC, leading to the demise of the Republic.)
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Comment by William R. Cumming

September 15, 2009 @ 6:26 am

Another very very important post! Thanks Phil!
Article IV. Section 4. US Constitution.
This section reads as follows in its entirety:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.”

It would be interesting to know if any law school in the country in its Constitutional Law courses studies the language of the section above. It would be interesting to learn how many federal lawyers, appointees and officers, have studied or been instructed on this language whether in DOJ or DHS or DOD! It would be interesting to know how many Governors and State AGs are familiar with this language. It would be of great interest to know if any federal training courses highlight this language whether in the civil agencies or DOD training facilities. I do know for a fact certain members of the National Guard are at least aware of the language.
Okay why this diatribe? Because it reflects the fact that NORTHCOM is governed by this language but probably does not know it. As a point of record, Secretary Rumsfeld opposed the NORTHCOM idea but was undermined by the Joint Chiefs that wanted it and ultimately approved by Congress. As always my information could be wrong. But if right raises the point–how effective is the civilian control at DOD where vast numbers of personnel in the Armed Forces are taught correctly that the only civilians in their chain of command are the SECDEF and the PRESIDENT! Yes they take an oath of loyalty to the Constitution not to the Chain of Command but the realities must be understood.
Another facet that creates lack of understanding in the military and DOD heirarchy is the fact that many things that DOD gets funded would more properly be in civilian hands and in fact their funding of DOD apparatus and agendas ends up depriving the civil agencies of what is necessary and needed to perform their jobs. It seems that no analysis is ever done by DOD as to whether a program, function, or activity could be done better somewhere else than DOD and its agencies or Armed Forces. The result is that DOD is like the young manager or supervisor who when faced with a task decides I can do this myself faster and better than delegating to a subordinate and then when a later multi-faceted crisis arises finds that his/her staff has not been trained and tested to meet the challenge. Okay, we now have a very thoughtful, concerned former academic turned adminstrator in the form of Paul Stockton who has to weigh the nunances and consequences of his decisions on the most important military/civil interface position in all of DOD. Hopefully, he will have influence and be able to construct a better relationship across the board on HOMELAND DEFENSE and HOMELAND SECUIRITY. Recently sandbagged by an early interim report his efforts to maximize federal assistance in disasters resulted in a brouhaha that was completely unnecessary because NO ONE BUT PAUL was paying attention to the details. Ulimately the issue was command and control over activated reserve and regular forces in disasters by the Governors, a system flatly prohibited by both the Constitution and federal law.
I hope these brief comments address and give insight to the complexity of Phil’s post. I now recite a few briefing points I used to make to high level DOJ fly away teams and yes as most of my remarks to them in that training situation were entirely unclassified.
First, was to cite to the provision of the Constitution above. Second, was to reflect on the formal DOJ opinion that ‘NO Military Commander” had the authority to declare so-call “Martial Law.” It can be declared but only with approval of the AG and the President and then geographically confined based on certain facts. “Martial Law” ends when civil government and civil/criminal courts are fully restored and this restoration is the primary mission of the military in such a circumstance. Fourth, that Posse Commitatus was a provision of Title 18 of the US Code, the so-called Criminal Code and its enforcement was the sole perogative of the DOJ and the US Attorneys. While it [Posse Commitatus] should be amended to make clear that humanitarian assistance not criminal law enforcement is never restricted by its terms that is its real history.

So here is my suggestion: Paul Stockton should work with his lawyers and lawyers from the DOJ to develop monographs that could be used by the JAG’s, their training institutions, the US Attorney’s, their training institutions, the Governors and STATE AG’s and their training institutions to study and develop procedures and processes that are Constitutionally and legally correct for the key military civil interface. There were in the past DOJ personnel like Mary Lawton, developer of the DOJ monograph on “Military Support in Domestic Disturbances” [1980] that were knowledgeable and reflective on the difficulty of the military/civil relationships and its importantance and dangers. The exercise attitudes are just reflective of the underlying lack of comprehension of all involved of the difficulty of making sure this relationship so important to making sure our democracy (republic) lasts! And now of course DHS is being flooded with DOD types that need a second career and don’t have a clue as to the sensitivities as to federalism and its problems. Also two out of three of the DHS lawyers were not just lawyers but federal law enforcement lawyers and prosecutors so that they are used to taking charge and overiding state laws sometimes for the same act and this is also a history that could be troubling.
My comment is much too long already but I think my point or points are clearly made. Get to work, Paul, Janet, and Eric and make sure this is a priority and done right before a tragedy of possibly immense and historic proportions occurs. You all swore an oath to the Constitution and its protection, not to “protect” the American people so let’s get it done.

Comment by Peter J. Brown

September 15, 2009 @ 8:58 am

If we are talking about the need to make serious headway with respect to NORTHCOM coordination then we must determine if National Guard should be given a much greater role in regards to managing, monitoring and coordinating joint domestic surge operations. Earlier this summer, I supported the idea that putting NG in the top slot because I believed this would help to transform NORTHCOM into much more of a grassroots-oriented organization that will not just do a better job of pulling manpower and needed resources into place in conjunction with ongoing FEMA regionalization and EMAC-related activities, but also perhaps help to glue faces and names together with roles and responsibilities for longer periods of time. probably a moot point by now, but I have seen nothing lately to make me change my opinion.

I stated, “another important dimension here involves efforts to reform and reshape the national, regional and state exercises so together, they form a more coherent and useful series of activities, both in regards of the planned objectives and goals, and, in terms of making the “post” side of the curve more useful from an applied “lessons learned” standpoint. A stronger NG / NORTHCOM connection could help immensely in terms of outcome and time to implement.”

After I made that statement I was struck by the findings of the GAO just a short time later concerning the nature of the grassroots response and the actual state of emergency communications (GAO-09-604) in which GAO stated that, “recent federal efforts underway include completing a memorandum of understanding (MOU) to establish the Emergency Communications Preparedness Center—to be jointly operated by a number of federal agencies such as DHS, FCC, and the Department of Commerce, as the focal point and clearinghouse for implementing federal interoperability efforts—and establishing multiple DHS and FCC stakeholder groups to formulate recommendations for improving emergency communications based on lessons learned from previous disasters.”

“To help foster implementation of the National Emergency Communications Plan, we are recommending that the Secretary of Homeland Security work to complete a memorandum to establish the Emergency Communications Preparedness Center. To help ensure that significant federal efforts are collaborative, we are recommending that the Secretary of Homeland Security and the Chair of FCC establish a forum, or other mechanism, to better collaborate to identify and discuss challenges, opportunities, and potential ways to better align their emergency communications efforts, such as the National Emergency Communications Plan and the 700 MHz Public/Private Partnership. To help ensure that federal agencies are well-positioned to support state and local first responders in a disaster, we are recommending that the Secretary of Homeland Security provide guidance and technical assistance to federal agencies in developing formal emergency communications plans. Finally, to enhance the value of DHS and FCC stakeholder group recommendations, we are recommending that the Secretary of Homeland Security and the Chair of FCC systematically track, assess, and respond to stakeholder groups’ recommendations.”

While many will disagree with my stance on someone wearing an NG hat in command of Northcom, important Northcom coordination issues cannot be resolved successfully if the above-mentioned communications coordination issues are not addressed at the same time. FEMA regional planning needs to be given much more visibility here, too. And this extends to MMRS and DMAT surge-related operations that might now fall under the Regional Emergency Communications Coordination Working Groups (RECCWGs) in each of the 10 FEMA regions. RECCWGs were created, “to assess emergency communications capabilities within their respective regions, facilitate disaster preparedness through the promotion of multijurisdictional and multiagency emergency communications networks, and ensure activities are coordinated with all emergency communications stakeholders within the RECCWG’s specific FEMA region.”

A lot to chew on I know, but coordination depends upon communications. For now, I will withhold any comments on the way in which we have created these enormously complex frameworks for response but allowed redundancy in terms of adequate numbers of skilled personnel to slip off the screen — not entirely but enough to raise some serious questions. I am referring to the comms side here, and civilian C4. We shall see if the framework holds up if and when swine flu hits full stride.

Comment by William R. Cumming

September 15, 2009 @ 9:56 am

Agree with Peter that NORTHCOM should be viewed as the pinnacle for NG!

Interoperability still plagues HS and EM! Identified right off the bat after 9/11 as crucial. Even I am confused as to roles of “new “FEMA” under PKEMA on communications issues and NP&PD which houses the NCS as well as other programs not included in the transfer back to FEMA of the Preparedness effort effective on March 31, 2007. Fugate now heads FEMA. Rand Beers heads NP&PD! Would that DHS comply with both the Administrative Procedures Act of 1947, as amended, and the Federal Register Act of 1934, as amended an publish updated delegations in the Federal Register.

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