Yesterday the House Armed Services Committee, Subcommittee on Terrorism, Unconventional Threats and Capabilities heard testimony on chemical, biological, radiological, nuclear, and high-yield explosives(CBRNE) consequence management. (See and hear the video.)
David Heyman, DHS Assistant Secretary for Policy, set out the CBRNE threat. Reviewing a list of recent events, Heyman concluded, “We can no longer discuss risk abatement of chemical, biological, and nuclear/radiological attacks as if these types of attack are unthinkable or undoable. U.S. intelligence, and the most recent intelligence around the world, continue to report that terrorists are intent on acquiring CBRNE weapons for use against the United States.”
There is a brigade-size federal active duty element allocated to NORTHCOM as a “CBRNE Consequence Management Response Force” a/k/a CCMRF. A second brigade is scheduled to be in place by October. A third by October 2010. While specializing in CBRNE threats, the same forces could be deployed in response to a variety of events.
In his prepared testimony, General Victor Renuart, the USAF four-star who heads NORTHCOM, explained, “CCMRF is a task force (approximately 4,700 people) that operates under the authority of Title 10. CCMRFs are self-sustaining and may be tailored to any CBRNE event. A CCMRF is composed of Army, Marine, Navy and Air Force units with unique CBRNE training and equipment and general purpose units trained to operate in proximity to a hazardous or contaminated environment. CCMRF capabilities include event assessment, robust command and control, comprehensive decontamination of personnel and equipment, HAZMAT handling, air and land transportation, aerial evacuation, mortuary affairs, and general logistical support to sustain extended operations.”
In October 2008 the American Civil Liberties Union initiated a FOIA request that raised several concerns regarding the CCMRF, including, “The deployment of CCMRF marks the first time an active military unit has been given a dedicated assignment to Northern Command, which was established in 2002 to assist federal homeland defense efforts and coordinate support of civil authorities. It raises important questions about longstanding separation between civilian and military government within the United States — a separation that dates to the Nation’s founding and that has been reiterated in landmark statutes, most importantly, the Posse Comitatus Act 18 U.S.C. Para. 1385.”
The Posse Comitatus Act forbids federal troops to be deployed with police powers. Following Hurricane Katrina an effort to significantly weaken the Posse Comitatus Act was initially successful, but the legal changes were subsequently overturned in 2008. The current language is the same originally adopted by Congress in 1878.
The potential life-saving and order-restoring capacity represented by the CCMRF is widely recognized. The use of active duty federal troops for this purpose is seen by some as a creeping militarization of the home front.
At yesterday’s hearing the Congressmen — of both political parties — kept coming back to “who’s in charge?” About nineteen minutes into the hearing, Mr. Smith, the subcommittee chairman, interrupted an explanation of HSPD-5’s intricacies, asking, “Does anyone of those groups have the lead?”
If there’s a real catastrophe, what’s the real chain-of-command? It is a good question. The answers, of course, are variations on “Well, it depends.”
As the hearing proceeded — maybe because of the provisional answers offered — the questions were increasingly directed to General Renuart. The implicit assumption seemed to be: the man in uniform will be in charge. Encouraging this impression is a principal reason why uniforms are worn.
If the General is in charge, then who’s in charge of the General? The prepared testimony of each witness was constitutionally restrained: federal forces will be deployed at the request of Governors to support civil authorities. The protocols of HSPD-5 and the National Response Framework will ensure effective collaboration across roles and responsibilities.
But what about when local civil authority has been overwhelmed by the catastrophe?
About half way through the hearing Congressman Kline began his inquiry by stating, “I am still, sort of grappling — and I think all of us are at one level or another — with the fundamental question of who’s in charge.” The Congressman then reviewed a variety of National Guard and DOD assets and asked, “When are these forces federal, when do they work for the state, when do they work for the Governor, when do they work for the General?”
The General responded, appropriately and accurately, well… it depends.
A bit later Congressman Miller, asked what happens, “if the Governor and the local officials don’t get it; they absolutely have become overwhelmed — as they did with Katrina — and don’t make the call (to the President) quick enough?”
There was a pregnant pause before the General responded. “Well, Mr. Miller, I think the President ultimately has a responsiblity for the nation to make a determination of the speed at which some event is unfolding. That is not a NORTHCOM decision. My role is to ensure that, if I’m asked, to be sure that I have all the pieces in place to be supportive. So I would defer to the national leadership to make a policy decision as to the ability of an individual state. That’s really not mine to call.”
I expect the General’s answer is accurate… even in its opacity. Is it an appropriate answer? In terms of civil-military authority, certainly yes. In terms of constitutional balance of powers? Probably not.
Funny how the Tenth Amendment can suddenly rise up as if from the dead: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
General Renuart is a practical man. He wants to do his duty. In a time of crisis he will be prepared to render protection and care. How can we allow him to do so with confidence while preserving the practical benefits of local capacity and the constitutional protections of state sovereignty?
The hearing was rather chaste in exposing the Tenth Amendment issue, but the bare skin was there for all to see. Whether titilating or horrifying probably depends on your taste.
Buried in the prepared testimony — never referenced in open session — was an interesting suggestion for how we might restore some constitutional modesty and, even perhaps, some honest dignity. More on this in a Friday post.
A July 30 New York Times editorial entitled: The military is not the police.