Homeland Security Watch

News and analysis of critical issues in homeland security

April 12, 2013

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on April 12, 2013

Might be worth noting — given our interest in homeland security — that on this day in 1861 South Carolina militia initiated an artillery bombardment of Ft. Sumter, beginning the Civil War. What’s on your mind?

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14 Comments »

Comment by William R. Cumming

April 12, 2013 @ 2:23 am

I would be interested in how posters and readers and commentators on this blog think DHS would be involved should there be civil riots and disorders!

It is my view that since the creation of DHS on March 1, 2003 largely lacking such an event none in DHS know their role in a riot or civil disorder and that before or after creation of DHS FEMA has no role.

The 1992 LA Riots after the Rodney King verdict were declared a Presidential disaster by President George W. Bush for the fires that occurred. No previous declaration for riots and civil disorders had ever received a declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act or predecessor disaster statutes such as the Disaster Relief Act of 1974.

Comment by William R. Cumming

April 12, 2013 @ 2:37 am

Correction and continuation:

Oviously it was President George H. W. Bush who issued the declaration of disaster for LA in 1992.
Given my personal concerns over DHS participation and roles I wrote a personal letter to George W. Bush’s first AG asking that DoJ/OLC study the issue in depth and produce an opinion on DHS roles. No response ever received. I specifically mentioned incidents and events involving biological agents where antidotes might be in short supply. A movie starring Matt Damon later was produced and issued involving such an event with riots and civil disorders occurring. Quite an effective movie IMO and produced with cooperation from CDC.

I would also not that the federalization of the California National Guard during the LA riots was the last time such federalization has occurred and was a factor in NOT federalizing the Louisiana National Guard in Hurricane Katrina response.

FEMA of course ultimately pays for the NG when employed in a STATE role during disasters. And Posse Commitatus does not apply to STATE NG operations.

Comment by William R. Cumming

April 12, 2013 @ 2:50 am

Further continuation:

In 1980 the DoJ produced an excellent monograph entitled “Military Support to Civil Disorders” that was written by a brilliant DoJ lawyer Mary Lawton of FISA fame. I repeated requested each GC of FEMA to request formally that DoJ update that monograph but none did so. Nor did the DoD General Counsel or the respective JAG authorities in DoD.

In many major exercises, events and meetings with DoJ and DoD officials always orally mentioned the need for that monograph to be updated and many were surprised that it existed when I handed them a copy.

I also have requested past and current Members of Congress to follow the 1980 precedent of mandating the issuance of an opinion by the AG that came out of the energy crisis under President Carter. Issued in 1982 if memory serves that lengthy statutorily mandated opinion concluded [shockingly perhaps?] that under the laws of many STATES the Governors had more authority in an energy crisis than the President.

The actions taken during the ENRON situation in 2000-2001 first by Clinton and then by Bush involved related concerns.

These monographs and opinions can take years to produce and another monograph by Mary Lawton revealed that DoD for years had been teaching incorrect views of Martial Law in its various JAG schools. Hey it is one Constitution last I heard.

And the President is Commander-In-Chief [but of the military only not civilians] and Chief Executive putting paid to the notion of some UNITARY EXECUTIVE as described by John Woo while a DoJ attorney for President George W. Bush.

Comment by HGRATTAN

April 12, 2013 @ 8:37 am

Alexis De Tocqueville’s Democracy in America (1848) noted that “The American government is not a federal government, but an incomplete national government.” (p.141)

Damien’s movie Contagion is most instructive. see:
http://www.youtube.com/user/movieclipsTRAILERS

Contagion-like disasters would, IMHO, dictate the ascendancy of the federal government.

The LA Riots not as much a federal ascendancy as a perceived situational imperative (also was pre-DHS).

See: DOD (2013) Strategy for Homeland Defense and Defense Support of Civil Affairs

http://www.defense.gov/news/Homelanddefensestrategy.pdf (was featured on this blog recently).

See also Sam Clovis: http://impactwithclovis.com/

OWL did catch the attention of DHS and especially DHS Intelligence and Analysis. IMHO, there were groups within/peripheral to OWL-writ large that were a security concern (much less than 1% of OWL).

DHS-boots-on-the-ground, however, would be a concern. Each states has a National Guard and that, IMHO, should be the second resort with local and state police being the primary agents.

Comment by Philip J. Palin

April 12, 2013 @ 8:48 am

Bill:

Unless or until the riot and/or civil disorder involved a specific DHS component (e.g. TSA or CBP), I don’t perceive much of a forward-leaning DHS role. The Insurrection Act strikes me as the most relevant legislation and in case of riot and civil disorder this statute A) reinforces the principal role of state and local authorities and B) specifically references the federal use of the “armed forces.” Both as a matter of practicality and tradition, this would probably not encompass DHS assets.

If the civil disorder was extended, I suppose DHS intelligence assets would be involved. If the civil disorder included cyber-attacks, I suppose NPPD would be involved. But in each case, I expect these would be more in support of state, local, and private sector players than in a command-and-control role.

You would know much better than me, but I have always perceived that the language of the Stafford Act (“any occasion or instance”, “regardless of cause”) could be used to support a Presidential Declaration after a riot or sustained disorder.

Stafford Act, Section 102 definitions:

(1) “Emergency” means any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.
(2) “Major disaster” means any natural catastrophe (including any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this Act to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

Comment by William R. Cumming

April 12, 2013 @ 9:53 am

The Stafford Act is Presidential authority. This allows DoJ to step in on the recommendation as they did in the Exxon Valdez and BP GOM oil spills.

Historically DoJ opposed declarations for riots or civil disorders on the basis they would encourage such activity. That objection was overriden in the LA riots.

Comment by William R. Cumming

April 12, 2013 @ 10:31 am

HGrattan!

Note the strategy document you linked to does NOT discuss or mention riots and civil disorders. Given its discussion of FEMA I wonder if FEMA signed off or was given the chance to comment. I doubt it.

And note footnote 12 on page 15! The Stafford Act allows the President to direct DoD or any federal agency to conduct activity under a declaration of disaster or emergency although this has NEVER occurred and a provision of law ignored by all.

Also note that the President has statutory authority to waive any regulation issued pursuant to the Stafford Act and this also has NEVER been done.

Check out please Phil section 501(b) Stafford addressed by a FEMA OGC opinion in 1990 or 1991 available on the FAS/FEMA page or at Vacation Lane Blog under the FEMA historical docs section.

And a later opinion requiring the AG to signoff on any finding of any particcular federal responsibility for the incident/event.

All of this stems back to the fact that the FEMA Director reported through Ed Meese as Counselor to the President and then as AG.

The basic problem is that DoJ dealing with the problems of LEAA feared a FEMA role in law enforcement and were supported by the Judiciary Committees. Of course now DoJ worst nighmare is DHS! And the rule of law in DoD is always an issue!

Comment by William R. Cumming

April 12, 2013 @ 10:32 am

Note Bene! The US Coast Guard is not subject to Posse Commitatus.

Comment by HGRATTAN

April 13, 2013 @ 10:59 am

Bill,

The Commission On Intergovernmental Affairs (1955) noted that “the continuing validity of State and local government affords the most solid evidence that our federal system is still an asset and not a liability. To be sure, it is not a neat system, and not an easy one to operate.”(p.2)

The commission also noted America’s traditional distrust of too much concentrated authority.

IMHO, the federal system works because we are the U.S.A., the polity and citizenry make sense of a unique dialectic. Issue resolution (SCOTUS?)may determine the role of DHS is civil disorder.

Comment by William R. Cumming

April 14, 2013 @ 1:15 pm

HGRATTAN!

Would that the STATES and their 90,000 units of local government be the “laboratories” of “democracy”!

Comment by HGRATTAN

April 15, 2013 @ 5:13 pm

The federal government, the states, territorial govt., tribal govt, local govt, and the citizenry unilaterally and holistically are the laboratories.

IMHO, some labs are more important than others on given days. The ultimate experiments would answer the question which lab is best on which days = TBD.

Comment by William R. Cumming

April 16, 2013 @ 11:41 am

Extract from FAS Secrecy News:

DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES

In last Friday’s Federal Register the Department of Defense published a final rule on Defense Support of Civilian Law Enforcement Agencies. The rule specifies and defines the support that DoD may provide to federal, state and local law enforcement agencies, “including responses to civil disturbances.”

“The President is authorized by the Constitution and laws of the United States to employ the Armed Forces of the United States to suppress insurrections, rebellions, and domestic violence under various conditions and circumstances,” the new rule states.

“Planning and preparedness by the Federal Government, including the Department of Defense, for civil disturbances is important due to the potential severity of the consequences of such events for the Nation and the population. The employment of Federal military forces to control civil disturbances shall only occur in a specified civil jurisdiction under specific circumstances as authorized by the President, normally through issuance of an Executive order or other Presidential directive authorizing and directing the Secretary of Defense to provide for the restoration of law and order in a specific State or locality.”

The new rule, which forms part of the Code of Federal Regulations, is almost identical to DoD Instruction 3025.21 on “Defense Support of Civilian Law Enforcement Agencies” that was issued on February 27, 2013 (noted by Public Intelligence on April 11).

Comment by Willliam R. Cumming

April 16, 2013 @ 1:13 pm

The regulation cited in the comment above will be codified annually in Title 32 of the Code of Federal Regulations [CFR]!

Comment by HGRATTAN

April 16, 2013 @ 5:46 pm

Executive discretion in extreme civil disturbances makes sense.

Pray for the executive the wisdom of Solomon.

Semper Paratus

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