Homeland Security Watch

News and analysis of critical issues in homeland security

May 22, 2015

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on May 22, 2015

William R. Cumming Forum

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16 Comments »

Comment by William R. Cumming

May 22, 2015 @ 8:45 am

There was a filibuster on the Senate floor this week over the PATRIOT ACT and especially Section 215. The issue meta-data collection and surveillance. Here is some background.

I was asked to prepare the backgrounder set forth below that was published as part of Working Paper 107 by the Natural Hazards Center of the University of Colorado and organization that I helped found and fund about 1975. The backgrunder published about 2003.


The U.S.A. Patriot Act, Pub.L 107-56, October 26, 2001
The U.S.A. Patriot Act consists of ten titles (Over 130 pages of the U.S. Code Congressional and Administrative News). The full title of the Act is “Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism” (USA Patriot Act) of 2001.

The titles are instructive and are as follows:

Title I Enhancing Domestic Security Against Terrorism

Title II Enhancing Surveillance Procedure

Title II International Money Laundering Abatement and Anti-Terrorism Financing Act of 2001

Title IV Protecting the Border

Title V Removing Obstacles to Investigating Terrorism

Title VI Providing for Victims of Terrorism, Public Safety Officers, and Their Families

Title VII Increased Information Sharing for Critical Infrastructure Protection

Title VIII Strengthening the Criminal Laws Against Terrorism

Title IX Improved Intelligence
Title X Miscellaneous

Much of this statute had been in the “wish list” of the Department of Justice even prior to September 11, 2001. Some portions seem not to relate to the war on terrorism. For example, the so-called “Gratuity Act,” which dates back to the Civil War was the basis of the prosecution for former Secretary of Agriculture Espy, and is found in Title 31 (Money & Finance) of the United States Code, is restated, amended, and updated to reflect case law (DOJ losses). See Section 329.

Section 411 provides new definitions of terrorism so as to affect the admissibility of persons seeking admission as legal resident aliens or seeking citizenship. For example, solicitation of funds for terrorist activity becomes a new absolute bar to temporary or permanent immigration. Additionally, a broadened definition of “terrorist organization” and association with them triggers immigration bans. By implication, authority for new investigation and tracking systems are authorized to enforce such restrictions. See also the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub.L 107-173, May 14, 2002.

Section 412 of the U.S.A. Patriot Act concerns mandatory detention of suspected terrorist and has been the subject of many articles in the press.

Title VI involving victim compensation has been extensively discussed in the news, particularly the requirement to reduce awards from the DOJ supervised fund by the amount of life insurance and pensions.

Numerous amendments to the United States Code (Title 18-Crime) are contained in this new statute. For example, section 817 expands the prohibitions on possession or use of certain biologic agents. See also the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub.L. 107-188, June 12, 2002. Section 1013 of the U.S.A. Patriot Act lists extensive Senate findings on bioterrorism issues. While Congressional findings do not make substantive law, they are useful in construing Congressional intent. On this basis, one could conclude from the Senate findings that the entire public health system requires reconstruction to effectively deal with bioterrorism.

Section 1005 of the Act is called the “First Responder Assistance Act” and authorizes so-called “Terrorism Prevention Grants.” These grants would fund equipment, technical assistance, materials, and training. DOJ has already published grant application procedures. If there is a permanent appropriation, as opposed to a Continuing Resolution, for FY 2003, this would be the largest federal first responder grant program ever. FEMA also provides grants for similar objectives through its EMPG function, as well as grants through the United States Fire Administration to the fire community. The dollar amounts of these latter programs are much smaller. It remains to be seen whether the First Responder community will receive more grant money from DOJ, DHS, or DOD. If one includes the medical community, then HHS may also rival these organizations in total outlays for First Response.

Perhaps confusingly, section 1014-Grant Program for State and Local Domestic Preparedness authorizes a grant to each state to prepare for and respond to terrorist acts involving weapons of mass destruction (WMD’s) and biological, nuclear, radiological, chemical, and explosive devices.

Section 1012 requires a security risk determination to be made for all persons with HAZMAT transportation licenses. Since no investigatory or adjudication standards are included in the statute, presumably this is left entirely to the discretion of the Executive Branch.

Section 1016 concerns Critical Infrastructure Protection. The statute funds the Defense Threat Reduction Agency (successor to the former Defense Nuclear Agency) for certain functions now being transferred to the new Department of Homeland Security.

Interestingly, sections 224 and 303 contain mandatory review or sunset provisions. By December 31, 2005, certain portions of the statute, but not all, will expire (unless of course extended by new Congressional action). Foreign Intelligence Investigations (a term of art) started before that date will be allowed to continue. Other saving provisions may have to result from legal interpretations.

There is a key new provision giving immunity from suit in Section 225 to persons who cooperate with the government on so-called FISA (Foreign Intelligence Surveillance Act of 1978) wiretaps. Of course, under current Supreme Court case law there can be no immunity for violations of an individual’s Constitutional protected rights.

This statute will probably see numerous technical amendments in the 108th Congress convening in January 2003. The statute has been cited in numerous court filings, but its real significance awaits final judicial construction, which may take years.”

N.B. The Patriot Act has been amended and extended several times by Congress and enacted into law by signature of various Presidents.

Unfortunately the legislative history of Section 215 is NOT available to me.

HOWEVER, A RECENT ARTICLE ON THE PATRIOT ACT IN A JOURNAL MAY BE OF INTEREST!

http://tinyurl.com/qxbc4wp

IMO there is NO LAW THAT IS SECRET LAW although as we all know there are legal opinions both classified and unclassified not always available to the public.

Comment by Tom Russo

May 22, 2015 @ 4:33 pm

How practical is it to reconstruct “the entire public health care system requires reconstruction to effectively deal with bioterrorism.”

I am not suggesting it may not be needed but it is a bureaucracy with a federal component and fifty state components…some of which have yet to centralize their local jurisdictional components into an effective centralized statewide system.

Frankly, I do not believe today’s systems can manage a pandemic of the dimensions of the 1918 pandemic that requires a mass vaccination effort. The 2009 H1N1 was a dust-up by comparison.

Those systems remain underfunded by state systems while federal preparedness funding propped those systems up. Preparedness initiatives continue to drift around major priorities as requirements increase and staffing recycles, retires and/or is replaced.

Comment by Arnold Bogis

May 22, 2015 @ 5:15 pm

Tom,

I don’t disagree with a thing that you wrote. But what was different in 1918? The same governance structure was in place, absent federal funding and scientific knowledge/tools/medicine/etc.

There is a greater population and greater population density today. But what systems existed that no longer do or are so degraded that they couldn’t handle such a stress?

Comment by Vicki Campbell

May 22, 2015 @ 6:55 pm

Well, I’m not sure what’s being referenced by “systems,” but not only do we have a much greater population (and density), but we definitely have a considerably more mobile population than a century ago, as well as much greater public expectations surrounding mitigation, preparedness and response in particular.

Comment by Tom Russo

May 23, 2015 @ 1:18 pm

There are a number but a core is the mass vaccination capability. The vaccinator corps of public health has diminished in both manpower and as the depository of knowledge and skill sets.

Today, seasonal vaccination has been outsourced, I suppose one would call it that, to the private sector. In national public health emergencies where vaccination is the mitigation strategy, CDC current policy is to direct “emergency” vaccine to departments of public health, who then coordinate the machinations with those participating private sector partners.

The point is that in 1918 and well into the latter decades of the twentieth century, public health provided this core service. Today, this capability is diminished and, as yet to be replaced by a model that has been conceived and tested.

But you know all this.

Comment by Citizen Joe

May 24, 2015 @ 6:10 am

WASHINGTON – Internal State Department emails in the aftermath of the Benghazi terror attack show then-Secretary of State Hillary Clinton received detailed information indicating the strike was planned by well-trained fighters, yet her office continued to push the narrative days later that it began “spontaneously.”

How dare she? How dare this US administration? How dare such outright negligence and self-serving acts be allowed to go w/o arrest for suspicion in breach of faith, treason by both good ‘ol Ms. Hillary and Barry Obama as none are above their solemn oath and the law to protect the Homeland! Such deceiving ways and nothing less than intentional deceit towards the populace must be met with strong lawful opposition by a majority of House and Senate fully investigating the devious ways of the Clintons who have been willing to rent out the Lincoln room and sell the country for our gain so when we talk about Homeland Security, well, in the next 18 months, let’s find a candidate no matter the [political party who will remember just why 400,000 young Americans gave their Life in World War II to address the same treachery as we see from Tehran and others today – seeking the demise of a civilized humanity –

Now we shall shortly see even Hamas and so many other regional Middle East participants await for Karl Theodor zu Guttenberg to take the baton from Merkel and the Germans continue to surround Tehran and all become better positioned mostly supplied with German weapons to make it quite apparent to at least some of us that War looms dead ahead!

God Bless America!

Comment by Vicki Campbell

May 24, 2015 @ 2:04 pm

Mr. Joe – Karl Theodor zu Guttenberg?… Seriously?….. The man was born with quite a few silver spoons in his mouth, and still couldn’t manage not to blow it in record time. The level of sheer fraud he’s exhibited surrounding his all but wholly plagiarized PhD thesis, which caused his resignation, is fairly shocking on its face.

Also, re Obama and the Clintons, if you’re supposedly so upset about their alleged “deceit” or otherwise misleading misrepresentations about various events or incidents (which many on the left have also been upset about, including myself), you must’ve been absolutely beside yourself at the level of dishonesty and deception, and just outright fraud as well as bold-faced lying that emanated from the Bush administration after 9/11 in the lead up to our utterly illegal invasion of Iraq (which only people on the left, including myself, seem to have cared at all about), which couldn’t possibly have cost more innocent lives, or made both U.S. citizens as well as millions of innocent civilians throughout the middle east much less safe than we were before. This unprecedented level of dishonesty by the political right in this country in its representations to the American people that took us into such an unnecessary and overwhelmingly destructive war has continued to constitute the political functioning of Republicans to a degree that simply has no equivalency amongst Democrats, no matter what else their failings, and has been extended to just about almost any major political or policy issue facing us at this point, as it has continued throughout our ongoing war on and more surreptitious occupation of much of the middle east. It is also certainly replete throughout Republican fear-mongering about Iran, who couldn’t be further from the threat to the U.S. that apparently fairly cowardly Republicans would like us all to believe it is. You really do seem to have been taken in by that deception fairly thoroughly.

Also, just fyi, God did bless America – and many Americans have nonetheless been very busy squandering and otherwise screwing up much if not most of what America has been so blessed with ever since, whether it’s our beautiful environment or our surprisingly well-crafted democracy – all primarily because of an extraordinary lack of commitment to taking personal responsibility for both finding out about as well as hearing the truth, no matter where it might lead or who it might indite or impune. With all due respect, if you were half as concerned about Republican dishonesty as you are any possible serious deception coming from Democrats, you would’ve likely offered up a fundamentally different and considerably more insightful political commentary than you just did.

Comment by William R. Cumming

May 25, 2015 @ 1:10 am

In 1982 a DoD official of the Reagan Administration suggested that the population of the USA could survive a nuclear exchange with the Soviet Union “WITH ENOUGH SHOVELS”! Also the title of a book opposing civil defense efforts.

That official’s obit appeared recently. T.A. Jones!

Comment by William R. Cumming

May 25, 2015 @ 1:12 am

The so-called PATRIOT FREEDOM ACT apparently has been defeated in the U.S. Senate. That if enacted would have limited section 215 of the Patriot Act surveillance program and collection of Meta-data.

Comment by William R. Cumming

May 25, 2015 @ 1:31 am

Extract NYTimes:

Thomas K. Jones in 1976. An American arms negotiator, he believed the Soviets were better prepared for a nuclear strike. Credit Associated Press
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Thomas K. Jones, an American defense official and arms negotiator who turned Nikita Khrushchev’s defiant “We will bury you” threat on its head when he declared in 1982 that Americans could survive a Soviet nuclear attack by digging shelters — “If there are enough shovels to go around,” he said, “everybody’s going to make it” — died on May 15 in Bellevue, Wash. He was 82.

The cause was complications of Parkinson’s disease, his wife, Deborah, said.

His “enough shovels” assurance was largely derided, but his faith in the efficacy of civil defense, his certitude that the Soviets were better prepared to rebound from a nuclear strike and his fears that the United States was lagging in weapons development undergirded the Reagan administration’s aggressive missile defense strategy and its resolve during arms limitation talks to maintain America’s bomber superiority.

Mr. Jones, the deputy under secretary of defense for strategic and theater nuclear forces and a technical adviser to the Strategic Arms Limitation Talks, was an acolyte of Paul Nitze, an architect of Cold War arms policy. Mr. Nitze, a deputy defense secretary under President Lyndon B. Johnson, co-founded Team B, the think tank whose assessment of America’s vulnerability to Soviet weapons — it later appeared to have been overstated — prompted an arms race that began in the waning days of Jimmy Carter’s administration and accelerated under Ronald Reagan.

Mr. Jones operated mostly below the radar until 1982 when, in an interview with Robert Scheer of The Los Angeles Times, he delivered his “enough shovels” civil defense prescription.

Without adequate protection, he warned, “half the people in the country” would die in a nuclear attack, and it would take “a couple of generations” to recover. However, he was quoted as saying, “if we used the Russian methods for protecting both the people and the industrial means of production, recovery times could be two to four years.”

That the nation could survive a nuclear war — and therefore might be more inclined to engage in one — rattled Senate Democrats, who summoned Mr. Jones to elaborate. He failed to appear, three times; the Defense Department sent other officials instead. When the Democrats accused them of gagging Mr. Jones, the officials insisted that he did not speak for the department “on these matters.”

His comments prompted an editorial in The New York Times, under the headline “The Dirt on T. K. Jones.”

“Who is the Thomas K. Jones who is saying those funny things about civil defense?” it began. “Is he only a character in ‘Doonesbury’? Did he once write lyrics for Tom Lehrer’s darker political ballads? Or is T. K., as he is known to friends, the peace movement’s mole inside the Reagan Administration?”

Mr. Jones finally appeared on Capitol Hill on March 31, 1982, joining the assistant secretary Richard N. Perle in appealing to the Senate Foreign Relations Committee for more civil defense funding. Asked about his “enough shovels” remarks, Mr. Jones said they had been misinterpreted. Mr. Scheer, who later wrote a book titled “With Enough Shovels: Reagan, Bush and Nuclear War” (1982), said he had tape-recorded their interview.

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“The tapes were transcribed by the transcription staff at The L.A. Times, and they are accurate as quoted in my book and writing for the paper,” Mr. Scheer said in an interview on Friday.

Mr. Scheer spoke to Mr. Jones in his Pentagon office and again at his home, on Mercer Island, Wash. “T. K may have sounded like a kook,” he said, “but he was hardly alone in the Pentagon and its allied industry.”

In the published interview, Mr. Scheer quoted Mr. Jones as saying, “You can make very good sheltering by taking the doors off your house, digging a trench, stacking the doors about two deep over that, covering it with plastic so that rainwater or something doesn’t screw up the glue in the door, then pile dirt over it.”

Digging, he figured, would take about 10 hours, followed by installation of a ventilation pump and dealing with sanitation and supplies. Apartment dwellers were no problem, he said; they could be moved to rural areas.

“The second problem of the ’50s was we fell into that argument of: If you’ve got a shelter and your neighbor’s got a gun, how’s this going to be handled?” he continued. “Turns out with the Russian approach, if there are enough shovels to go around, everybody’s going to make it.”

Any inflated estimate of Soviet civil defenses suggested that the United States should invest more not only in protecting its citizens and industrial resources, but also in weapons capable of inflicting additional damage on the enemy.

Mr. Jones considered himself apolitical, but the response to his remarks split pretty much along ideological lines — between those who considered him a prophet whose predictions, translated into policy, intimidated the Soviets into ending the Cold War, and those who dismissed him as an unhinged hawk who evoked Dr. Strangelove.

In a 1984 book, “Ronald Reagan: The Politics of Symbolism,” the historian Robert Dallek wrote, “The belief that any such civil defense program could allow the country to survive a nuclear conflict encourages the administration to contemplate fighting such a war.” And in 2013 in Salon, the journalist Alexander Zaitchik wrote that it was ironic that “the neocons were selling their vision of Soviet supremacy largely on the fantasy of a sophisticated Soviet civil defense program — which consisted of little more than dirt-covered doors.”

But in “Waging Nuclear Peace: The Technology and Politics of Nuclear Weapons” (1985), Robert Ehrlich, while warning against “overenthusiastic” claims, said that “realistic civil defense and crisis relocation could be effective.” And Richard F. Sincere Jr. wrote in 1983 in The Washington Times that while Mr. Jones was portrayed as “a wild-eyed maniac,” critics ignored the empirical data he had gathered, “which demonstrate that, with proper preparations, the devastation from nuclear weapons can be significantly mitigated.”

Anyway, said Bruce G. Blair, a research scholar at the Program on Science and Global Security at Princeton University’s Woodrow Wilson School, “by the mid-1980s and the rise of Gorbachev, Reagan switched gears and renounced the idea of fighting and winning a nuclear war, and he actually sought the total elimination of nuclear weapons.”

Thomas Kensington Jones was born in Tacoma, Wash., on June 30, 1932. He started working for what became Boeing Aerospace while attending the University of Washington’s School of Engineering and remained there after graduating. Except for his forays into government service, he spent his entire career at the company and retired in 1999.

At Boeing he worked on the Minuteman missile and on manned space and strategic bomber systems as the company’s program and product evaluation manager. In 1971, during the Nixon administration, he joined the defense secretary’s support group for the Strategic Arms Limitation Talks; he later became its deputy director and senior technical adviser.

In addition to his wife, the former Deborah Benedetto, Mr. Jones is survived by his daughters, Kerin Jones, Kelli Wick, Alicia Calderon and Mindy Shivers; his sons, Kevin Jones and George L. Richardson Jr.; four grandsons; and a brother, Jason.

Comment by William R. Cumming

May 25, 2015 @ 1:44 am

A personal P.S. to the concept of “enough shovels”! In May 1980 Mt. St. Helens erupted in Washington State. U.S. Senator Warren “Maggie” Magnuson called FEMA Director John W. Macy requesting that FEMA ship 900,000 shovels immediately to the State of Washington to assist in the response. Macy apparently agreed thinking NO PROBLEMO. Two days later Maggie called Macy again who promised that the shovels had been shipped. Two days later Maggie called again asking about the shovels. Macy told Maggier that the shovels had NOT been shipped and moreover the US supply chain could NOT produce that number of shovels any time soon.

The way Washington really works?

Comment by William R. Cumming

May 25, 2015 @ 1:48 am

Some credit Chenoyble core melt accident for accelerating Glasnost and Perestroika!

Don’t overlook the Armenian Earthquake where the Soviet Army was sent to respond and Soviet military begged for shovels to help respond. The were notified that NO SHOVELS available.

In WWI and WWII shovels might have been the most important weapon for many.

Such is history?

Comment by William R. Cumming

May 26, 2015 @ 7:57 am

CORRECTION: It was the bill entitled the USA Freedom Act that failed in the US Senate on a procedural vote.

Comment by William R. Cumming

May 26, 2015 @ 11:45 am

Does anyone know of articles or books discussing nation-states wherein permanent cultural changes occurred fro disasters of whatever variety?

Oddly I think the DUSTBOWL was the only natural disaster that has occurred since 1789 that permanently changed US and our culture. Could be wrong as always!

Comment by William R. Cumming

May 28, 2015 @ 12:12 pm

I will be discussing the Texas flooding in tomorrow’s FFF!

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