Page 1:

The demise of Osama bin Laden and the capturing or killing of many other senior al-Qa?’ida  leaders have rendered the group far less capable. However, al-Qa?’ida and its affiliates remain active in Pakistan, Afghanistan, Yemen, Somalia, and elsewhere. More broadly,violent extremists will continue to threaten U.S. interests, allies, partners, and the homeland.The primary loci of these threats are South Asia and the Middle East. With the diffusion of destructive technology, these extremists have the potential to pose catastrophic threats thatcould directly affect our security and prosperity. For the foreseeable future, the UnitedStates will continue to take an active approach to countering these threats by monitoring theactivities of non-state threats worldwide, working with allies and partners to establishcontrol over ungoverned territories, and directly striking the most dangerous groups and individuals when necessary.

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In the Middle East, the Arab Awakening presents both strategic opportunities and challenges. Regime changes, as well as tensions within and among states under pressure toreform, introduce uncertainty for the future. But they also may result in governments that,over the long term, are more responsive to the legitimate aspirations of their people, and aremore stable and reliable partners of the United States.Our defense efforts in the Middle East will be aimed at countering violent extremists anddestabilizing threats, as well as upholding our commitment to allies and partner states.

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To enable economic growth and commerce, America, working in conjunction with allies and partners around the world, will seek to protect freedom of access throughout the globalcommons ?– those areas beyond national jurisdiction that constitute the vital connective tissue of the international system. Global security and prosperity are increasingly dependent on the free flow of goods shipped by air or sea. State and non-state actors pose potential threats to access in the global commons, whether through opposition to existing norms orother anti-access approaches. Both state and non-state actors possess the capability and intent to conduct cyber espionage and, potentially, cyber attacks on the United States, with possible severe effects on both our military operations and our homeland. Growth in the number of space-faring nations is also leading to an increasingly congested and contested space environment, threatening safety and security. The United States will continue to lead global efforts with capable allies and partners to assure access to and use of the global commons, both by strengthening international norms of responsible behavior and by maintaining relevant and interoperable military capabilities.

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Acting in concert with other means of national power, U.S. military forces must continue to hold al-Qa?’ida and its affiliates and adherents under constant pressure, wherever they may be. Achieving our core goal of disrupting, dismantling, and defeating al-Qa?’ida and preventing Afghanistan from everbeing a safe haven again will be central to this effort. As U.S. forces draw down in Afghanistan, our global counter terrorism efforts will become more widely distributedand will be characterized by a mix of direct action and security force assistance. Reflecting lessons learned of the past decade, we will continue to build and sustain tailored capabilities appropriate for counter terrorism and irregular warfare. We will also remain vigilant to threats posed by other designated terrorist organizations, such as Hezbollah.

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Accordingly, DoD will continue to work with domestic and international allies and partners and invest in advanced capabilities to defend its networks, operational capability, and resiliency in cyberspace and space….

U.S. forces willcontinue to defend U.S. territory from direct attack by state and non-state actors. We willalso come to the assistance of domestic civil authorities in the event such defense fails or in case of natural disasters, potentially in response to a very significant or even catastrophic event. Homeland defense and support to civil authorities require strong,steady?–state force readiness, to include a robust missile defense capability. Threats to the homeland may be highest when U.S. forces are engaged in conflict with an adversary abroad.

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The nation has frequently called upon its Armed Forces to respond to a range of situations that threaten the safety and well-being of its citizens and those of other countries. U.S. forces possess rapidly deployable capabilities, including airlift and sealift, surveillance, medical evacuation and care, and communications that can be invaluable in supplementing lead relief agencies, by extending aid to victims of natural or man-made disasters, both at home and abroad. DoD will continue to develop joint doctrine and military response options to prevent and, if necessary, respond to mass atrocities. U.S. forces will also remain capable of conducting non-combatant evacuation operations for American citizens overseas on an emergency basis.

You may see more.   The document includes considerable attention to WMD and cyber threats not excerpted above.

Much of what needs to be said about the skill and courage of the President and those who conceived and carried out the mission has been said many times over in the past few days. How salient is it, however, that we can acknowledge and discuss the basis for our opinions about the performance of these individuals rather than relying solely on our predispositions to trust the opinions of others? In light of the consequences of public opinion on ongoing support for operations in Afghanistan, Iraq and elsewhere, it strikes me a particularly important that people not only can reach conclusions of their own about these actions, but also that they seem to be doing so without any particular help from the punditocracy. (This, of course, in no way deterred the talking heads from babbling, often incoherently, about the whole affair. Despite substantiation of leaks about the subject of the President’s remarks, their distracting dialectic diminished in quality as the interval between the scheduled start of President Obama’s address and his actual appearance became increasingly delayed.)

The policy environment surrounding national defense and homeland security are filled with discontinuities and uncertainty despite bin Laden’s demise. How will we end our involvement in Afghanistan? Will the government of Iraq to extend agreements for the U.S. military to continue advice and support arrangements? How will the administration and Congress resolve their pitched political differences over fiscal restraint and debt reduction without undermining our ability to meet commitments here and abroad?

Notwithstanding the release of some erroneous information that has required correction and elaboration today, the administration seems to have done itself (and us) a huge favor by making as clear as possible the basis of its assessment that al-Qaeda and its affiliates remain a threat to the U.S. and its interests. They have also made it clear that lessons about cooperation and information sharing have been learned. And perhaps most important of all, they have demonstrated the potency of patience, confidence, determination and resolve when exercised in the right proportions.

These lessons reinforce one last point: The success of this operation was not so much the product of superior technology or the investments of vast sums of money (although both undoubtedly helped ensure the careful and skillful execution of this mission), but rather the diligent and precise application of human and social skills in gathering, processing and acting on intelligence, which included precise and scrupulous attention to the most minute details.

Much more of this story remains yet to be told. But this should not hinder our understanding of the extraordinary efforts that led to this achievement nor discourage us from continuing the work required to protect our country and others affected by the threat of violent extremism.

I testified against this proposition before the House Homeland Security Committee.  I continue to have conceptual and functional reservations.  But today I will embrace the President’s belief and offer a prescription for improving integration, effectiveness, and efficiency.

For this purpose, greater energy and attention  should be given to a specific recommendation of the Quadrennial Homeland Security Review.  From page 71 of the QHSR:

Build a homeland security professional discipline: Develop the homeland security community of interest at all levels of government as part of a cadre of national security professionals. A well-documented need within the national security community is a professional development program that fosters a stable and diverse community of professionals with the proper balance of relevant skills, attributes, experiences, and comprehensive knowledge. Executive Order 13434, “National Security Professional Development,” initiated a program for developing interagency national security professionals through access to an integrated framework of training, education, and professional experience opportunities. We must work together with our national security partners in bringing that important idea to fruition. As part of that effort, we must take steps to create a homeland security community of interest across the enterprise. Three elements of professional development are education, training, and experience via developmental assignments. State, local, tribal, and territorial governments, DHS and other Federal agencies, and academic institutions have taken important steps to build programs to support these key areas and will continue to emphasize enterprise-wide approaches to enhancing homeland security professional development.

The National Security Professional Development (NSPD) program established under Executive Order 13434 (May 17, 2007) has, to date, been implemented with a bureaucratic minimalism that  has done nothing to enhance capability or capacity in either National Security or Homeland Security, much less for the Platonic form in which these security shadows become an indistinguishable whole.

Today (and for most of the last seventy years) there are various orders of a national security priesthood.  The combination of rigorous education, apprenticeship, mentoring, and field experience required for ordination is reminiscent of the Jesuits at high tide.   There is also competition — sometimes friendly, sometimes not — between the national security analogs of Jesuits, Benedictines, and Franciscans spanning the military, diplomacy, intelligence, and related.

Into this mix the so-called homeland security professions — law enforcement, fire, emergency management, public health, and more — arrive like so many fancy-dressed laity. We are Knights of Columbus who the priestly orders tolerate, encourage, or dismiss depending on personal taste or particular need.

EO 13434 and PSD-1 and the QHSR seem to say that priests and laity should learn together and collaborate toward the same purpose.   If the NSPD  program was undertaken earnestly and mindfully over the next thirty years then, perhaps, the President’s vision could be achieved.   Such is not the case today, to our detriment.

The issue was a particular concern of the Founders and deserves our continued vigilence.  I happen to disagree with Bill’s interpretation, but I cannot claim the President’s language or intent is altogether clear.  So we begin with the President’s words and then continue to Bill’s and my own. 

The White House

 June 30, 2010

Memorandum from the President on the Long-Term Gulf Coast Restoration Support Plan

SUBJECT: Long-Term Gulf Coast Restoration Support Plan

The oil spill in the Gulf of Mexico is the worst environmental disaster America has ever faced. The oil spill represents just the latest blow to an area that has already suffered significant hardship. In addition to fighting the spill, conducting environmental cleanup, and ensuring such a crisis does not happen again, we must help the Gulf Coast and its people recover from this tragedy. A long-term plan to restore the unique beauty and bounty of this region is therefore necessary.

As I announced on June 15, 2010, and pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, I assign to the Secretary of the Navy (Secretary) the responsibility to lead the effort to create a plan of Federal support for the long-term economic and environmental restoration of the Gulf Coast region, in coordination with States, local communities, tribes, people whose livelihoods depend on the Gulf, businesses, conservationists, scientists, and other entities and persons as he deems necessary. In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President (collectively, executive branch components).

Specifically, I direct the following:

Section 1. As soon as possible, the Secretary shall develop a Gulf Coast Restoration Support Plan (Plan), based on the following principles:

(a) The Plan shall provide a comprehensive assessment of post-spill needs, as well as a proposal for Federal assistance in the overall recovery of the region.

(b) The purpose of the Plan shall be to develop an approach that will ensure economic recovery, community planning, science-based restoration of the ecosystem and environment, public health and safety efforts, and support of individuals and businesses who suffered losses due to the spill.

(c) The Plan shall take into account resources already available to respond to the oil spill, and complement the on-going oil spill response efforts. The Secretary will also coordinate, as needed, with the State, Federal, and tribal trustees who have responsibility for directing the natural resource damage planning process under the Oil Pollution Act and other applicable law.

(d) The Plan shall identify long- and short-term objectives and, where applicable, how the achievement of these objectives will be measured.

Sec. 2. (a) This assignment is prescribed as an additional responsibility of the Secretary in accordance with section 5013 of title 10, United States Code. This additional responsibility may not be delegated under section 5013(f) of title 10, United States Code. (b) To assist in accomplishing the directive in section 1 of this memorandum, executive branch components shall make available information and other resources, including personnel, deemed by the Secretary to be necessary for development of the Plan.

Sec. 3. (a) Executive branch components shall carry out the provisions of this memorandum to the extent permitted by law, subject to the availability of appropriations, and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

 (b) Nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall relieve or otherwise affect the obligations of any responsible party under the Oil Pollution Act or other applicable law.

Sec. 4. The Secretary is hereby authorized to publish this memorandum in the Federal Register.

Signed/ BARACK OBAMA

–+–

Commenting on a prior post Mr. Cumming wrote:

Yes and the oldest and richest democracy (Republic) has now celebrated July 4th by putting the US Navy in charge of long term recovery in the Gulf of Mexico. The militarization of US domestic policy continues apace just as in foreign policy and relations. Salute that flag!

To which I replied:

Bill, Where did you see the US Navy assignment? I know about Secretary Mabus’ assignment. But I have perceived that as separate from his SecNav role — and much more connected to his background as a former Governor of Mississippi. If that’s wrong, want to know more.

Mr. Cumming responded:

Presidential proclamation published in Tuesday’s Federal Register. Sent it to you and will send again. John Paul Jones to the rescue!

To which I responded:

Bill, thanks for resending the reference. For the benefit of other readers a web version is available at:
http://www.whitehouse.gov/the-press-office/memorandum-president-long-term-gulf-coast-restoration-support-plan

As you know, I share your concern regarding militarization of government operations. As such, it is certainly appropriate to raise the concern in this case.

I would offer, however, that based on the (little) I know and my own reading of the President’s memorandum, I understand that Secretary Mabus is, essentially, being seconded from his current role as SecNav to a leadership position for both the National Security Staff and Domestic Policy Staff.

This is my reading of the intent of the following:

In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President(collectively,executive branch components).

The reference to Executive Office of the President includes both NSS and DPS, especially a well-established recovery working group spanning the two EOP functions.

I agree the situation is ambiguous. I bet there will be some SecNav staff involved. And this is another example of an increasing tendency for us to turn to military resources (active or retired) for commmand and operational competence. It is a worrisome trend.

Mr. Cumming respectfully disagreed:

Having read thousands of these memos it looks like a formal delegation of authority to me. See 3 USC Section 301. By passes SECDEF and others. But hey Phil you could be right and only a designation.

As always I could be wrong but a designation names a person while a delegation names a postion. Basic black letter ADMINISTRATIVE LAW.

I guess this WH knows the difference and did what they wanted to do (accomplish)! Even though Roy Mabus is former governor in a Gulf Coast state I could name perhaps a 100 others better qualified to save the states of Florida, Alabama, Mississippi, Louisiana and TEXAS. In fact why not George W. Bush, tan, rested and ready? Give him a chance to redeem his Katrina castrophic efforts! This is not a joke. At least he is not eligible for re-election [but of course Jeb is also tan, rested and waiting his turn)! Hey this is a bipartisan or non-partisan response effort correct?

To which I offered a sort of rebuttal:

I will further note that Title 10 USC, section 5013 (f) as referenced in the President’s memorandum reads:

The Secretary of the Navy may assign such of his functions, powers, and duties as he considers appropriate to the Under Secretary of the Navy and to the Assistant Secretaries of the Navy. Officers of the Navy and the Marine Corps shall, as directed by the Secretary, report on any matter to the Secretary, the Under Secretary, or any Assistant Secretary.

The President’s memorandum explicitly excludes delegation under paragraph 5013 (f), which — at least in my reading — is the White House effort to give the former Governor, who happens to be SecNav, an additional duty, but to avoid militarizing the additional duty.

I wonder if there might not have been a less ambiguous way of accomplishing the same thing, but there seems to me a pretty clear and appropriate effort to focus this additional role outside the Department of the Navy.

–+–

Before retirement Bill Cumming was a long-time lawyer with the US government.  I am neither a lawyer nor an experienced government official. If you have further insights — or suggestions — please add your comments.

The people in and around Ft. Hood responded to the November 5, 2009 shooting about as perfectly as one could hope.

Four minutes and twenty seconds after the first 911 call, “the assailant was incapacitated.”  Two minutes and fifty seconds later “two ambulances and an incident command vehicle … arrived on the scene….”

But still, 13 people were killed; 43 wounded or injured.

The Report is a painfully somber reminder that freedom’s price remains eternal vigilance.

For most of the past 20 years, the authors note, “our forces have been engaged in continuous combat operations.”

Eternal vigilance does not mean simply staying alert.  It also means as good as we get, it’s never going to be perfect.  There will always be surprise.

Freedom demands a vigilance that knows it will be surprised.
————————————————————————————————–
Here are some excerpts (with my headings) from the Report.  It is a well written and comprehensive — within its charter – document.  But sadly for many people in homeland defense and homeland security, it is not the first time such a report has been written.

The Report’s uniqueness may be found mostly in lessons that possibly are new to the DoD, but that are disquietingly — even banally — familiar to civilians in the  homeland security realm.

ON WHERE THE THREAT COMES FROM
DoD force protection policies are not optimized for countering internal threats. These policies reflect insufficient knowledge and awareness of the factors required to help identify and address individuals likely to commit violence.  This is a key deficiency.

ON THE NEED TO IMPROVE INFORMATION SHARING
The time has passed when bureaucratic concerns by specific entities over protecting “their” information can be allowed to prevent relevant threat information and indicators from reaching those who need it—the commanders. In this rapidly changing security environment throughout our government, the Department of Defense can exercise its role to set the bar higher to establish a new force protection culture, with new standards and procedures for sharing information, to recognize and defeat evolving external and internal threats.

ON FIGURING OUT  THE BEST STRUCTURE FOR RESPONDING TO A MUMBAI STYLE ATTACK
While leaders at Fort Hood responded well under the stress of a rapidly evolving crisis, we are fortunate that we faced only one incident at one location. We cannot assume that this will remain the case in the future. Our command and control systems must have the right architecture, connectivity, portability, and flexibility to enable commanders to cope with near-simultaneous incidents at multiple locations. …. Considering the requirements for dealing with multiple, near-simultaneous incidents similar to Fort Hood, a review of the Unified Command Plan may be in order.

ON LETTING OTHERS KNOW WHAT’S GOING ON
During the initial stages of the attack at Fort Hood, commanders and first responders, unsure of the nature of the threat, and in an effort to maximize their security posture, set and maintained Force Protection Condition Delta. There were apparently no indications that the rest of CONUS DoD force was immediately notified of the event; most installations and units first found out about the event through the news media. This was a single event, but had it been the first in a series of coordinated, near simultaneous attacks, most other DoD installations and facilities would not have been properly postured for an attack. The timely sharing of incident information could have served to alert other forces within the Area of Responsibility to take the prepare-and-defend actions necessary to harden themselves before a near simultaneous attack comes to them.

[Compare this with complaints from some pilots in the air during the December 25th attack on NW 253 that the first time they heard of the incident was on the ground when they turned on CNN -- e.g.,  Pilot furious at U.S. for silence on bomb ]

ON HAVING A COMMON OPERATIONAL PICTURE
A Common Operational Picture is “a single identical display of relevant information shared by more than one command.”…. A Common Operational Picture provides a standardized, continuously updated, multiple-user capability to produce reports, mapping, imagery, and real time information sharing between multiple subscribers.  Information sharing and establishing a Common Operational Picture is vital to coordinating efforts of multiple emergency response agencies’ and facilitates’ collaborative planning at all echelons to achieve situational awareness…. Services have not widely deployed or integrated a Common Operational Picture capability into installation Emergency Operations Centers….

ON BEING NIMS COMPLIANT, “JUST LIKE EVERYONE ELSE” [sic]
In 2009, the Department directed the Services to be in compliance with the Federal framework for emergency response by 2014. Compliance with this guidance will enhance the ability of the Department’s installation and facility emergency personnel to work with first responders from Federal, State, and local jurisdictions to save lives and protect property….  The Department of Defense guidance was promulgated in part to align the Department with national response policies and establish the Installation Emergency Management program.  The Installation Emergency Management program directs the Services to adopt the National Incident Management System, which Federal, State, and local agencies have already adopted. ….  Currently all 50 states have complied with the Federal requirements.

ON NOT HAVING ANY PLACE TO HIDE
This event shows us, too, that there are no safe havens—for Soldiers, Sailors, Airmen, Marines, their co-workers and their families. The challenge for the Department of Defense is to prepare more effectively for a constantly changing security environment.

ON ONE TEAM, ONE FIGHT — FOR REAL
Synchronize the Continental United States (CONUS)-based DoD emergency management program with the national emergency management framework. Our installations must have a common operating system that allows commanders to access real-time threat information, respond rapidly to changing force protection conditions, and begin response and recovery operations in near real time.  This is an aggressive goal, but it matches the goals and character of future enemies.

ON A NEW PARTNERSHIP BETWEEN DOD AND THE FBI
Act immediately with the Federal Bureau of Investigation to enhance the operation of the Joint Terrorism Task Forces. To protect the force, our leaders need immediate access to information pertaining to Service members indicating contacts, connections, or relationships with organizations promoting violence.  One additional step may be to increase Service representation on the Joint Terrorism Task Forces….  eGuardian is the only Suspicious Activity Reporting system that communicates directly with the FBI’s JTTFs, and if adopted by the Department of Defense would allow designated DoD law enforcement assets access to receive and input suspicious activity. This would also provide an additional method by which threat information would flow from the Department of Defense to the FBI, in situations where the Department of Justice has an investigative interest. Adoption of eGuardian is currently the recommended solution being proposed by the Office of the Assistant Secretary of Defense for Homeland Defense for the Department of Defense.

ON MAYBE IT IS TIME TO FIX THIS MULTI-AGENCY SECURITY CLEARANCE MESS
In the Fort Hood incident, the alleged perpetrator held an active and current SECRET security clearance based on a February 2008 National Agency Check, with Local Agency and Credit Check of background investigation. Although accomplished in accordance with current guidelines, this background investigation did not include a subject interview or interviews with co-workers, supervisors, or expanded character references.  We believe that if a more thorough investigation had been accomplished, his security clearance may have been revoked and his continued service and pending deployment would have been subject to increased scrutiny.

ON GETTING AHEAD OF THE CYBER THREAT WHILE WE MAY STILL HAVE A CHANCE
The evolving security threat increasingly involves information exchanges using the Internet.   There are numerous DoD and interagency organizations and offices involved in defense cyber activities.  The Department of Defense does not have a comprehensive and coordinated policy for counterintelligence activities in cyberspace.

ON CHILDREN — THE DOD IS ABOUT WHERE MOST OF THE CIVILIAN SECTOR IS
We especially note that as a result of the Force Protection Condition imposed by Fort Hood leadership during the crisis, a number of young school children remained closeted in their classrooms for a significant period.  Our recommendation is that those responsible for them at school (e. g. , teachers, administrative personnel) receive additional training to anticipate the special needs that could arise during a period of lengthy lockdown.

ON DISASTERS AND THE MINISTRY
Our examination underscored that the Chaplain Corps has a great deal to offer in a mass casualty situation. Responding to mass casualty events requires more than the traditional first responder disciplines such as police, fire, and medical professionals. Comprehensive religious support that anticipates mass casualty incidents should be incorporated into installation emergency management plans and exercises.

ON OUR OBLIGATIONS TO EACH OTHER
… reinforce the fabric of trust with one another by engaging, supervising, mentoring, counseling, and simple everyday expressions of concern on a daily and continuous basis… We must be alert to the mental, emotional, and spiritual balance of Service members, colleagues, and civilian coworkers, and respond when they appear at risk.

————————————————————————————————–

One of the more interesting appendices in the Report was a literature review briefly summarizing the last 10 years of research on workplace violence — which is one mundane way to look at the November 5 event:

Each year, more than one million people in the U.S. are harmed by workplace violence, and an estimated 17,000 take their own lives in their place of employment.  The portrait of the “disgruntled” employee who “goes postal” and kills a supervisor does not encompass the full array of workplace homicides: customers, clients, peers, and superiors are also responsible. The rates of workplace violence in the U.S. Postal Service are actually lower than in the general workforce, so that organization, despite the popular phrase, does not provide a “worst case” for study.

The Report includes something else I had not read before:

Although domestic terrorism is far more common than international terrorism,[ my emphasis] research on terrorism focuses on the latter.  Motivations for domestic terrorism are diverse, and include animal rights, environmentalism, nationalism, white supremacy, religious causes, and right-wing politics. Overall, acts of domestic terrorism tend to occur in large urban areas and target the police and military forces.

The Report recommends the DoD become more aware of civilian law enforcement’s active shooter tactics.  One footnote recommends a Department of  Homeland Security “booklet” on active shooter response (available here, thanks to the Missouri Office of Homeland Security).

I don’t know how or why the Department of Homeland Security, the National Tactical Officers Association, the Fairfax County Police, the National Retail Federation, and the Retail Industry Leaders Association got together to produce what I thought was a very informative (for the uninformed like me) booklet.

But who cares.

Eternal vigilance means sometimes you have to get into someone else’s lane.

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.

Below the NGA gives further attention to activating the Council of Governors established by the 2008 National Defense Authorization Act.

See related coverage by Roxana Tiron in The Hill and Megan Scully at govexec.com.

LETTER FROM THE NATIONAL GOVERNORS’ ASSOCIATION

August 20, 2009

Dear Chairman Levin and Ranking Member McCain:

The nation’s governors oppose efforts to provide the Secretary of Defense with expanded authorities to assist in the response to domestic disasters as part of this year’s National Defense Authorization Act (NDAA). Governors remain concerned regarding proposed changes to the military’s authority to engage independently in domestic emergency response situations. We strongly believe the consideration of any such proposals should be preceded by a discussion regarding the tactical control of forces serving inside a state during a disaster response.

It is our understanding that the Department of Defense (DoD) has asked Congress to grant the Secretary of Defense the authority to order Reserve forces to active duty to assist in disaster response as part of the NDAA conference agreement for Fiscal Year 2010. As you know, a similar provision was included in last year’s House version of the NDAA, but was removed in conference because of governors’ concerns. In the Joint Explanatory Statement that accompanied the bill, Congress made clear that DoD should engage governors to address their concerns before moving the proposal forward:

“The Department of Defense should engage with the community of governors to work out an understanding of unity of effort during domestic terrorist events and public emergencies. This key underlying issue must be addressed to allow this and other promising proposals to be enacted.”

Recent outreach by officials at DoD to correspond with governors regarding their proposal is not sufficient to engender governors’ support or justify moving ahead with the proposal at this time. As set forth in the attached letter we sent recently to Paul Stockton, Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs, governors welcome the opportunity to work with DoD to discuss unity of effort and tactical control during disasters and to identify legislative and operational opportunities to improve our response to such events. These discussions, however, should not be done hastily and should be designed to address concerns and forge understanding between governors and the department.

Fortunately Congress created the appropriate forum for discussing this issue when it called for the creation of the Council of Governors as part of the NDAA for Fiscal Year 2008. We’ve encouraged DoD and the Administration to establish the Council of Governors to facilitate consultation and coordination between the Secretary of Defense, the Secretary of Homeland Security, and governors on issues critical to homeland defense and emergency response. Your support in ensuring the Council of Governors is quickly established would help facilitate the dialog that must take place before any legislation regarding these issues moves forward.

Sincerely,

cc:
The Honorable Ike Skelton, Chairman, House Armed Services Committee
The Honorable Buck McKeon, Ranking Member, House Armed Services Committee

The NGA response was — predictably – less-than-enthusiastic.  Here’s the proposed legislative language being offered by DoD:

SEC. ___.  AUTHORITY TO ORDER ARMY RESERVE, NAVY RESERVE, MARINE CORPS RESERVE, AND AIR FORCE RESERVE TO ACTIVE DUTY TO PROVIDE ASSISTANCE IN RESPONSE TO A MAJOR DISASTER OR EMERGENCY.
(a) AUTHORITY.-
(1) IN GENERAL.-Chapter 1209 of title 10, United States Code, is amended by inserting after section 12304 the following new section:
Ҥ 12304a. Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve: order to active duty to provide assistance in response to a major disaster or emergency
“(a) AUTHORITY.-Notwithstanding any other provision of law, to provide assistance in responding to a major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), the Secretary of Defense may, without the consent of the member affected, order any unit, and any member not assigned to a unit organized to serve as a unit, of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve, under the jurisdiction of that Secretary to active duty for a continuous period of not more than 120 days.
“(b) EXCLUSION FROM STRENGTH LIMITATIONS.-Members ordered to active duty under this section shall not be counted in computing authorized strength of members on active duty or members in grade under this title or any other law.
“(c) TERMINATION OF DUTY.-Whenever any unit or member of the Reserves is ordered to active duty under this section, the service of all units or members so ordered to active duty may be terminated by order of the Secretary of Defense or law.”
(2) CLERICAL AMENDMENT.-The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 12304 the following new item:
“12304a. Army Reserve, Navy Reserve, Marine Corps Reserve, Air Force Reserve: order to active duty to provide assistance in response to a major disaster or emergency.”.
(b) TREATMENT OF OPERATIONS AS CONTINGENCY OPERATIONS.-Section 101(a)(13)(B) of such title is amended by inserting “12304a,” after “12304,”.

Further, at the close of this post  is the late July letter of Paul N. Stockton, Assistant Secretary of Defense (Homeland Defense and Americas’ Security Affairs) to the NGA chairman regarding the proposed legislative language. 

Through a staff colleague, Dr. Stockton has also passed along this further response:

Philip J. Palin’s August 13, 2009 article “Govs to DoD: Thanks, but no
thanks” was a great overview of the debate on the Department of Defense legislative proposal that seeks the authority to order Army, Navy, Marine Corps, and Air Force Reserves to active duty to assist in responses  to major disasters and emergencies in the United States.  I would like to emphasize that our proposal does not seek to usurp the authorities of Governors but rather ensure the federal government is able to respond with ALL available and appropriate resources when requested by a state.   As AP reporter Lolita Baldor aptly wrote, “California officials grew irate when they saw helicopters sitting idle at Camp Pendleton as fires raged through the countryside.”  While the Pentagon was able to direct active duty Marine helicopter units to respond to Gov. Arnold Schwarzenegger’s request for aid, (DoD) could not order the nearby Marine Corps Reserve units to do the same.  If passed, our legislative proposal will ensure that our Nation is able to access and utilize all of our capabilities during a disaster to include those in the military reserves, when requested by a Governor.

Tracking the surge of new readers on Friday and Saturday it is pretty clear that many readers of last week’s post are concerned about an incremental acquisition of power by the central government producing a slippery slope to tyranny.   As Dr. Stockton’s comments suggest, this concern is in tension with taking prudent steps to ensure a constitutional and effective federal response to a catastrophic disaster. 

Is there a reasonable accommodation of the tension?  Probably worth a real discussion that includes some careful listening by all sides.

Following are two JPEG images of Paul Stockton’s original letter.  I understand these are barely readable.  I will eventually pound out a text version of the letter, but given other commitments today, this is the best I can do and get this to you in a timely way.

I have not yet seen a copy of the original letter from Dr. Stockton.

According to Matthew Rothschild in The Progressive, the letter signals an intention to seek Congressional approval to post almost 400,000 military personnel in the U.S.  Rothschild continues, “This request has already occasioned a dispute with the nation’s governors. And it raises the prospect of U.S. military personnel patrolling the streets of the United States, in conflict with the Posse Comitatus Act of 1878.”

 AP reporter Lolita Baldor offers a more expansive explanation for the governors’ concern.  “At the heart of the disagreement is who will exercise the muscle to command reserve troops when they are sent to a particular state to deal with a hurricane, wildfire or other disaster. The governors see the Pentagon move as a strike at state sovereignty, while the military justifies it as a natural extension of its use of federal forces.”

Writing in The Hill, Reid Wilson, reports, “A bipartisan pair of governors is opposing a new Defense Department proposal to handle natural and terrorism-related disasters, contending that a murky chain of command could lead to more problems than solutions.”

A regular reader of HLSwatch suggests there is very helpful background in a  November 2008 CRS report, written by Jennifer Elsea and Chuck Mason, entitled: Use of Federal Troops for Disaster Assistance: Legal Issues.  The first paragraph is a great one, “Recognizing the risk that a standing army could pose to individual civil liberties and the sovereignty retained by the several states, but also cognizant of the need to provide for the defense of the nation against foreign and domestic threats, the framers of the Constitution incorporated a system of checks and balances to divide the control of the military between the President and Congress and to share the control of the militia with the states. This report summarizes the constitutional and statutory authorities and limitations relevant to the employment of the armed forces to provide disaster relief and law enforcement assistance.”

At this point, I don’t have anything to add that you can’t find in what these reporters and researchers have produced. Please access the original stories.  If anyone has a copy of Paul’s letter, please let me know.

TEXT OF NGA RESPONSE TO DOD LETTER

The Honorable Paul Stockton
Assistant Secretary of Defense for Homeland Defense
and Americas’ Security Affairs
The Pentagon
Washington, D.C. 20301

Dear Assistant Secretary Stockton:

On behalf of the nation’s governors, we would like to thank you for your letter regarding the legislative proposal to provide the Secretary of Defense with expanded authorities to assist in the response to domestic disasters. While we appreciate the outreach, governors remain cautious about changes to the military’s authority to engage independently in domestic emergency response situations. The proposal you suggest may have merit, but its consideration must be preceded by a discussion regarding the tactical control of forces serving inside a state in response to a disaster or emergency.

It is our position that to carry out our homeland defense and homeland security responsibilities, governors must retain command and control over the domestic use of their own National Guard forces (Title 32 or State Active Duty status), supporting National Guard forces from other states, and Title 10 forces operating within the supported governor’s state or territory. Consequently, when a dual status command has not been established under 32 United States Code 325, governors, acting through their Adjutants General and Joint Force Headquarters-State, must have tactical control over all Title 10 active duty and reserve military forces engaged in domestic operations within the governor’s state or territory.

We are concerned that the legislative proposal you discuss in your letter would invite confusion on critical command and control issues, complicate interagency planning, establish stove-piped response efforts, and interfere with governors’ constitutional responsibilities to ensure the safety and security of their citizens. One of the key lessons learned from the response to the terrorist attacks on September 11, 2001, and to Hurricanes Katrina and Rita in 2005 was the need for clear chains of command to avoid duplication of effort and to ensure the most effective use of response resources. Without assigning a governor tactical control of Title 10 forces assisting in a response, and without the use of a dual-hatted National Guard commander to ensure coordination between Title 32 and Title 10 forces, strong potential exists for confusion in mission execution and the dilution of governors’ control over situations with which they are more familiar and better capable of handling than a federal military commander.

We look forward to discussing potential tactical control solutions. For example, current military doctrine explicitly allows members of the United States armed forces to serve under the operational direction of foreign commanders, with the President retaining ultimate command over U.S. forces. If the command relationship with the President can be maintained while American active duty personnel are operating under the control of foreign commanders, we see no convincing reason why it cannot be maintained while active duty personnel are under the control of a state governor acting through the Adjutant General. The Commission on the National Guard and Reserves’ Second Report to Congress dated March 1, 2007, specifically recommends governor direction of state and federal military assets to synchronize the military response to disasters:

“Recommendation 8. As part of Department of Defense efforts to develop plans for consequence management and support to civil authorities that account for state-level activities and incorporate the use of National Guard and Reserve forces as first military responders (see Recommendation 19), the Department of Defense should develop protocols that allow governors to direct the efforts of federal military assets responding to an emergency such as a natural disaster.”

We do not yet understand how the legislative proposal would increase the number of DoD personnel available to assist disaster victims. Under existing legislation, DoD has the authority to order members of the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active duty to assist in responses to major disasters and emergencies in the United States. Further, we are not yet convinced the proposed legislative changes would increase the responsiveness of DoD personnel. Under existing legislation, when emergency conditions dictate, local military commanders and responsible DoD component officials are authorized to respond to requests from local authorities and to initiate immediate response actions to save lives, prevent human suffering, or mitigate great property damage under imminently serious conditions.

As you know, a similar proposal was contained in the House of Representatives’ version of the National Defense Authorization Act for Fiscal Year 2009, but was removed during conference because of governors’ concerns. In the Joint Explanatory Statement that accompanied the bill, Congress made clear that DoD should engage governors to address their concerns before moving the proposal forward:

“The Department of Defense should engage with the community of governors to work out an understanding of unity of effort during domestic terrorist events and public emergencies. This key underlying issue must be addressed to allow this and other promising proposals to be enacted.”

Governors and their Adjutants General would welcome the opportunity to work with you and others at DoD and the National Guard Bureau to discuss tactical control during disasters and to identify legislative and operational opportunities to improve our response to such events. The best way to facilitate such consultation and communication is for DoD to quickly establish the Council of Governors as required by the National Defense Authorization Act for Fiscal Year 2008. Doing so will provide an appropriate forum to address these issues and other aspects of defense support to civilian authorities.

Sincerely,

Governor James H. Douglas

Governor Joe Manchin III

cc:
The Honorable Robert M. Gates, Secretary of Defense
The Honorable William J. Lynn, III, Deputy Secretary of Defense
Admiral Michael Mullen, Chairman, Joint Chiefs of Staff
The Honorable Michèle Flournoy, Under Secretary of Defense for Policy
General Victor E. Renuart, Commander, U.S. Northern Command and North American Aerospace Defense Command
General Craig R. McKinley, Chief, National Guard Bureau

[Non-text portions of this message have been removed]

The President shall establish a bipartisan Council of Governors to advise the Secretary of Defense, the Secretary of Homeland Security, and the White House Homeland Security Council on matters related to the National Guard and civil support missions.

The instruction comes early in a seeming hodgepodge of measures to achieve “additional reserve component enhancement.”  As far as I can find, President Bush did not establish the Council and President Obama has not yet undertaken to do so.

On Tuesday in prepared testimony for the House Armed Services Committee,  Subcommittee on Terrorism, Unconventional Threats and Capabilities,  Paul Stockton offered the following:

State and local expertise and perspectives are essential to success. It is also important to be mindful of the fact that, in our nation’s Federalist system, the Governors are sovereign, independently elected chief executives of their States. As the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs, I hope to contribute to a more inclusive effort, one that involves State and local partners as partners aforethought and not as an afterthought. (Note: emphasis in original testimony.) Congress, in section 1822 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), has provided a valuable vehicle through which to accomplish this goal: the “Council of Governors,” which would provide a forum for Governors, the Secretary of Defense, and the Secretary of Homeland Security to exchange advice, views, and recommendations on the National Guard, DSCA, and other matters of mutual interest. I will make it a top priority to implement this congressional objective.

The legislation is silent on how the Council of Governors might be established.  It could have fifty — or even more — members (the legislation does not reference “states,”  evidently terroritories might also be included).  The Governors themselves might participate.  But it could also consist of powerless appointees gathered as yet another feeble federal advisory body.

In his testimony Mr. Stockton gives primary attention to the practical benefits of involving Governors and acknowledging local capability in preventing, responding to, and recovering from catastrophic events.  The practicalities of risk-readiness innately push for State and local leadership.  As Secretary Napolitano said on Wednesday, “So how do we secure our homeland and stay true to our values?…It starts with the American people. From there, it extends to local law enforcement, and from there up to the federal government…”

Acknowledging and affirming the authority of the States in disaster preparedness and counter-terrorism is also consistent with Constitutional  protections of  State  sovereignty that - along with separation of powers, bicameralism, and the Bill of Rights – is another firewall to tyranny. 

In Federalist Paper No. 9 James Madison wrote, “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.”

Today most Americans — unlike our Founders — do not give much thought to the threat of tyranny.  Our benign neglect is a privilege produced by an intricate, sometimes unwieldy, yet resilient constitutional architecture.  It is worth considerable concern when any aspect of the structure is weakened.

For the last half-century the authority of the States in many domains — and especially in regard to security — has been more honored in the breach than in the observance.  If you wonder about the Founders’ intent, take some time to read — and perhaps to tremble at – Madison’s comparison of the federal and state governments in Federalist Paper No. 46.  Since the close of the Civil War such language has been largely limited to the political fringe.

A Council of Governors — especially one embraced with enthusiasm and discipline by the Governors — could restore balance where the central government has grown far beyond its intended proportion. 

Q. Why would you have your government so mixed?

A. Because the experience of the ages has proved that mixed governments are best.

Q. Simplicity is amiable and convenient in most things, why not in government?

A. Human nature is such, that it renders simple government destructive, and makes it necessary to place one power over against another to balance its weight.

Pennsylvania Evening Post

March 16, 1776

(Editorial Note:  The above is related to the July 29 posting entitled CCMRF: Constitutional Consequence Management Response Force)