The journal features original articles by Janet Napolitano, Michael Chertoff, Tom Ridge, Paul Stockton, and others.

The essays are available online by clicking on the links, below:

1. Progress Toward a More Secure and Resilient Nation – Janet Napolitano

DHS Secretary Janet Napolitano looks at how the past ten years have “made us smarter about the kind of threats we face, and how best to deal with them,” focusing on the strategy of local hometown security as a key to making our communities and the nation safer in the future. She makes the argument that, “…more and more often, state, local, and tribal law enforcement officers – and their community partners – are best positioned to uncover the first signs of terrorist activity.”

2. 9/11: Before and After – Michael Chertoff

Former DHS Secretary Michael Chertoff provides an overview of the “new legal architecture for counterterrorism” which required a refashioning of U.S. laws and processes “focused on three elements of the counterterrorism process: intelligence collection, information integration, and terrorist incapacitation.” His analysis includes observations on the legal challenges that homeland security presents in preventing attacks, sharing information and bringing terrorists to justice.

3. Never Any Doubt: A Resilient America – Tom Ridge

Former DHS Secretary Tom Ridge reminds us of the dangers of complacency and that “ten years is enough time to know that in the next ten years, the fight will still be with us.” He also reminds us that as new threats surface our tools, policies and security strategies must continue to evolve. “Because after taking fifty years to win the Cold War, while we emerged as the lone superpower, we were also left with a stockpile of weapons, tactics, and diplomatic relationships that were of little utility in the new security environment.”

4. Ten Years After 9/11: Challenges for the Decade to Come – Paul Stockton

Assistant Secretary Paul Stockton issues an invitation to practitioners and academics to work in partnership with the Department of Defense to build on the far-reaching progress that has already occurred since 9/11. Stockton identifies two areas that require specific attention: defense support to civil authorities and “a little-known but vital realm of preparedness: civil support to defense.”

5. Does Homeland Security Exist Outside the United States? – Nadav Morag

Nadav Morag contends, “Homeland security is a uniquely American concept. It is a product of American geographic isolation and the strong tendency throughout American history to believe that there was a clear divide between events, issues and problems outside US borders and those inside US borders.” In answering the question, “Does Homeland Security Exist Outside the United States?” he examines how other countries have organized their security policies, strategies, and plans.

6. Ten Years After the Terrorist Attacks of 9/11: The Need for a Transnational Approach to Address Risks to US Global Security Interests – John Rollins

John Rollins provides a transnational perspective on how the US approaches homeland security. As US economic, political, social, and environmental interests become more global, so have security threats. Rollins believes “the US no longer has the geographic or economic luxury of approaching security issues from a domestic or international perspective. Regardless of where a threat emanates from, today’s security professionals need to recognize, respond, and appreciate the near- and long-term transnational implications of risks facing the nation.”

7. Domestic Intelligence Today: More Security but Less Liberty? – Erik J. Dahl

Erik Dahl discusses the reshaping of the U.S. intelligence system over the past ten years and argues, “that even though we as a nation decided not to establish a domestic intelligence organization, we have in recent years done just that…” His overview concludes that while progress has been made, “… the development of a vast domestic intelligence structure since 9/11 has moved the balance [between security and liberty] quite firmly in the direction of more security, but less liberty.”

8. Preventing the Next 9/10: The Homeland Security Challenges of Technological Evolution and Convergence in the Next Ten Years – Rodrigo Nieto-Gómez

Rodrigo Nieto-Gómez looks at the innovation process that drives the technology sector and how the convergence of technology made 9/11 possible. He also explores the difficulties that technology convergence poses for homeland security professionals. “This retrospective distortion creates a security ecosystem where homeland security practitioners feel pressured to try to ‘connect the dots’ every time, instead of adapting to an environment of emerging patterns and mutating dots that cannot be connected.”

9. Security Studies: The Homeland Adapts – Stanley Supinski

This essay examines the development of homeland security education since 9/11 and the influences that have helped to shape its evolution. Stanley Supinski highlights some key challenges that remain to be addressed in order for homeland security to achieve academic maturity.

10. Inter-Organizational Collaboration: Addressing the Challenge – Susan Page Hocevar, Erik Jansen, and Gail Fann Thomas

This essay demonstrates how scholars have become engaged in theoretical work that can provide the basis for new homeland security policies, plans and organizational arrangements. The authors’ work focuses on identifying factors that contribute to effective inter-organizational collaboration and the factors that inhibit collaboration. This is an area that has proven to be one of the most critical challenges for the homeland security community.

11. Reflections on 9/11: Looking for a Homeland Security Game Changer – Samuel Clovis Jr.

Sam Clovis brings public education into the homeland security discussion. “My intent is to call the attention of my homeland security colleagues to the idea that public education reform must be part of any serious discussion about national or homeland security.” Clovis argues, “A better-educated citizenry will be less dependent on government and more independent in times of crisis… will be more attentive to issues and challenges at the state and local level and more engaged at the national level… will cost less in public funding and will contribute more to the public coffers.”

12. How Proverbs Damage Homeland Security – Christopher Bellavita

Christopher Bellavita discusses twelve proverbs – accepted truths – that have characterized the homeland security narrative. He contends that in the haste to establish a homeland security enterprise and create new policies and strategies, many homeland security proverbs may be inaccurate; they “distort the homeland security narrative in a way that inhibits the search for more effective ideas to protect the nation.” Bellavita sees an opportunity over the next ten years for academics and strategists “to take another look at the basic assumptions underpinning our homeland security narrative, and identify evidence that supports or refutes the proverbs used to guide strategic direction.”

13. The Post-Tragedy ‘Opportunity-bubble’ and the Prospect of Citizen Engagement – Fathali M. Moghaddam and James N. Breckenridge

Fathali Moghaddam and James Breckenridge examine the “opportunity-bubble” that allows leaders to mobilize the public immediately following a tragic event. “Although great crisis will inevitably invite consideration of many alternatives, leadership must pay special attention to opportunities to engage the public as capable partners in their country’s response to the crisis – calling upon them as citizens with civic duties, as well as rights.”

14. The Last Days of Summer – James J. Wirtz

Future generations of Americans will inevitably view 9/11 as a historical event and time period much like the bombing of Pearl Harbor and the Vietnam War era. However, 9/11 brought about significant changes to the country and American’s daily lives. These changes are the subject of this essay. “Instead of remaining an ‘extraordinary’ activity,” author James Wirtz suggests, “homeland security in the United States is becoming part of everyday life because it is slowly but surely improving the ability of federal, state, local and tribal agencies to prevent and respond more quickly and effectively to all sorts of threats and incidents.”

The conference theme was “Homeland Security in Transition.”

The academic discipline of homeland security and defense continues to grow and mature. In light of the advances we are experiencing, and with the first post-9/11 administration one year in office, our focus is on validating homeland security and defense education.

Here are some highlight of the conference, prepared by Dr. Stan Supinski:

———–

DHS Undersecretary for Management Elaine Duke discussed where the money in DHS is going and the needs of the workforce (more border work, especially in the north; the United States Coast Guard; and cyber were highlighted).  She also mentioned the emphases in the newly released Quadrennial Homeland Security Review – security, resiliency, and maintaining our ability to conduct cross border commerce.

Former DHS Secretary Michael Chertoff spoke about Homeland Security as a distinctive discipline because of the inclusion of national security and law enforcement.

He provided a list of the 8 most important things to include in an academic homeland security program.

• Management skills, and in particular the acquisition process
• Intelligence
• Risk management concepts and application
• Emergency management – with a huge emphasis on planning
• Legal issues – a basic understanding of applicable laws and constitutional authorities
• International relations
• Cyber and technological issues
• Social psychology – a focus on interagency relationship building and how to get the variety of players involved to cooperate.

Randy Larsen of the Institute for Homeland Security led a useful plenary session that focused primarily on the WMD threat.  He highlighted the need to balance our efforts towards high probability/low consequence events versus low probability/high consequence events, and noted we must keep our federal emphasis on the latter.

A plenary panel (with both DHS and NORTHCOM representatives) on critical infrastructure and the private sector discussed the need to emphasize both topics in our courses.  Barbara Yagerman of DHS said her office would support an effort to develop curriculum that could be shared across the community.

Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs Paul Stockton spoke in a plenary session about the needs of the DoD workforce and the current state of civilian-military relations. Secretary Stockton, and several of the other speakers, emphasized the need for academic homeland security programs to develop research, writing and planning skills.  Stockton also indicated that his office would support development of curricular components for planning courses

Nadav Morag conducted a well received presentation on Homeland Security in Israel.  Dr. Morag has developed an on-line self study course on the subject and it is available to conference attendees on the Center for Homeland Defense and Security website.

The Homeland Security and Defense Education Consortium Association executive director provided an update on the organization, including inroads made with the Department of Education and the posting of required accreditation documentation to their website.  This generated lots of positive discussion, particularly regarding the fact that core competencies will be emphasized, not prescriptions toward specific courses.

The conference also included 32 Breakout sessions.

The conference reminded participants they are part of a growing and important community. Virtually every homeland security education program continues to grow.   For example, the University of Maryland program now has 550 majors; Tulane, which just recently had their masters approved, already has 227.

The Homeland Defense and Security Education Summit was sponsored by:

• Homeland Security / Defense Education Consortium Association (HSDECA)
• Georgetown University Center for Peace and Security Studies (CPASS)
• Office of the Chief Learning Officer, U.S. Department of Homeland Security (DHS)
• Naval Postgraduate School Center for Homeland Defense and Security (CHDS)

It’s worth reading.  In straightforward language it sets out a vision,  philosophy and approach to intelligence that Blair and his leadership team perceive will give the US a comparative advantage. 

The homeland security aspect of the the NIS is mostly reflected in four elements.  First, there is significant attention given to combating violent extremism. 

Second, the strategy continues a trend away from focusing only on specific threats and increases attention to broader threat-capabilities.  While Iran, North Korea, China, and Russia each get a shout-out, there is significant priority given to intelligence requirements related to climate change and energy competition, technological change, and pandemic disease.  It is, essentially, an all-risks strategy.

Third, the NIS gives priority to “Understand, detect, and counter adversary cyber threats to enable protection of the Nation’s infrastructure.” This emphasis has gotten quite a bit of media attention. (See: Politico, AFP, and NextGov.)

Fourth, the strategy highlights the need to, “Strengthen existing and establish new partnerships with domestic, public and private entities to improve access to sources of information and intelligence, and ensure appropriate dissemination of intelligence Community products and services.” (I added the bold highlights.)

In an interesting coincidence (?) the day before the DNI’s speech, the Departments of Defense and Homeland Security announced a new intelligence initiative  focused on state and local partners:

Under this initiative, select fusion center personnel with a federal security clearance will be able to access specific terrorism-related information resident on the DoD Secret Internet Protocol Router Network (SIPRNet)—a secure network used to send classified data. This classified data will be accessed via DHS’ Homeland Security Data Network (HSDN). DHS will be responsible for ensuring that proper security procedures are followed.

“With this action, DoD continues its work in supporting states and localities who are leading our efforts to secure the nation from domestic terrorism attacks,” said Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs Paul N. Stockton. “We look forward to exploring other opportunities where DoD can help our state and local partners effectively defeat terrorism.”

I happened to be in the Bay area and was joined by some friends who had just left Admiral Blair’s Tuesday evening speech.  It helps that he is a good speaker.  There are some real laughs in the speech, not a trivial achievement given the context. Partly because of the laughs, the DNI did not come off as Dennis-the-Menace.  He projected class, competence and  character.

More important, of course, is the content of his remarks and, especially, his strategy.  This is the second National Intelligence Strategy to be made public.  This tradition should be continued and extended. 

I have some concern with FOIA free-for-alls.  Confidentiality and discretion can be helpful in finding common ground… of which I wish we could find a bit more. But I don’t see how a major strategy can be secret in a democracy. Several core strategies of the Bush administration — including HSPD-15 on counterterrorism and HSPD-23 on cybersecurity — are classified and no public version has been released.  What does it mean for a democracy to have a secret strategy?

The operational who, when, where, and how of strategy may not be appropriate to share.  But for government by consent of the governed to have any chance of working there is a fundamental need for the whats and whys of strategy to be brought before the people and their representatives. 

The biggest threat Dennis Blair faced Tuesday night was the mistrust of his fellow citizens. There were plenty in the room concerned that their government had been spying on them, behaving outside the law, and subverting the constitution. 

Americans may not know much history, but we know enough to understand that among great powers, liberties have usually been lost to internal “guardians” long before the external enemy shows-up. 

It is a bit sad — but nonetheless appropriate — that Blair’s official Vision for the Intelligence Community concludes, “Moreover, the Intelligence Community must exemplify America’s values: operating under the rule of law, consistent with Americans’ expectations for protection of privacy and civil liberties, respectful of human rights, and in a manner that retains the trust of the American people.”

Once we might have taken this for granted. No more.

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)

When I heard the rumor last week I sent Mike a congratulatory note.  When he did not respond, I took that as tacit confirmation.  But now it is public.

Mike has served as the Michigan Governor’s Homeland Security Advisor since 2003.  A general, a lawyer, and someone who has given significant attention to critical infrastructure, Mike is — at least – a triple threat.   His long service at the state level combined with his military background will be of particular value in this new role.

Being familiar with  both Paul Stockton, Assistant Secretary of Defense (Homeland Defense and Americas’ Security Affairs), and Mike McDaniel, this strikes me as a great team.  Mike has experiences, skills, and perspectives to complement Paul’s.  And they have known each other sufficiently well that, I expect, they are each entirely aware of what they have in the other.

The State and local emphasis that each man brings to this DOD office could be especially interesting to watch in action.  This also seems a sort of “tacit confirmation” for a rumor I have been hearing regarding what the White House office of personnel is looking for in HS appointments. 

Please see Mike McDaniel’s Michigan Department of Military and Veterans Affairs  official biography.

Pro forma does not mean unimportant.  The questions serve as markers for the Committee — or individual members — to signal their priorities.  For oversight committees the written Q&A is the beginning of a give and take that will continue while the nominee holds the position.

Many of the questions recently asked of Paul Stockton,  the President’s nominee for Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs, related to roles within DoD, between DoD and the Department of Homeland Security, relationships with the National Guard, with the States, and so on. This collection of questions and answers highlights the complicated matrix of players, authorities, and responsibilities that make up homeland security. Today, for example, Secretary Napolitano is in Colorado Springs meeting with General Gene Renuart the head of USNORTHCOM.

The Committee questions I found most interesting are collected below.  In the original document these questions are scattered, but taken together may suggest a pattern of concern by the Committee.  In this case the questions — and their ongoing implications – may be more important than any current answer.

The Secretary of Defense has issued guidance to establish 3 CBRNE Consequence Management Response Forces (CCMRFs) by October 1, 2010. Please provide your understanding of the roles and capabilities of the CCMRFs. Do you have any concerns about the ability of the Department to implement the Secretary’s direction to create the three CCMRFs on the prescribed schedule?

If confirmed, what would be your role with regard to the oversight, training, and employment of the CCMRFs?

Concerns have been raised about CCMRFs having a possible peacetime role that is inconsistent with other laws (such as Posse Comitatus). Do you agree that the purpose of CCMRFs is as a DOD support element for CBRNE incidents, and not for peacetime or civil disturbance missions?

There is currently considerable debate about the role the National Guard should play in defending the Homeland and in providing civil support assistance in Homeland security missions. The Commission on the National Guard and the Reserves recommended that the National Guard and Reserves be given “the lead role in and form the backbone of DOD operations in the homeland. Furthermore, DOD should assign the National Guard and Reserves homeland defense and civil support as a core competency consistent with their warfighting tasks and capabilities.” What role do you believe that the National Guard and Reserve should have in Homeland defense, as compared to the Active Component?

The Department of Defense has a mission to provide support to other federal agencies in the event of a domestic incident that requires a federal response, if directed by the President or the Secretary of Defense. The Posse Comitatus Act prohibits military personnel in a federal status from engaging directly in domestic law enforcement “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Use of National Guard personnel in a state status is not prohibited by this act, but the use of military personnel, including the National Guard in a Federal status, is prohibited.

What is your understanding of the legal issues and authority associated with using National Guard and Reserve personnel in security roles within the United States?

In your opinion, does the Posse Comitatus Act (18 U.S.C. § 1385) or chapter 18 of title 10, U.S.C. (which regulates the use of the armed forces in support of civilian law enforcement and related activities) require amendment to deal with the present homeland security situation?

Under what circumstances do you believe that it is appropriate for the Department of Defense to provide assistance to law enforcement authorities in response to a domestic terrorist event? What about a non-terrorist event?

None of these are new issues.   Most of the issues are far from having a consensus answer.  Many of these questions are a kind of Pandora’s box of policy problems for ongoing attention.  Raising the question is helpful to keeping the issue on top of the list for both the Committee and the nominee.  Trying to provide an entirely complete answer, especially in public session, would open the box and release an army of curses on  the Committee and — especially — the nominee.  This is usually understood by all involved.

On Tuesday, though, Senator McCain found Mr. Stockton’s answers to some of the Latin America related questions “lacking.”  Here, perhaps, is an example:

Question:

In the past few years, Bolivia has experienced extreme political unrest and, lately, President Morales has taken some positions that could complicate U.S. relations with Bolivia. How do you assess the situation in Bolivia and, if confirmed, how would you seek to accomplish the goals of combating drug trafficking and enhancing military engagement goals?

Answer:

The situation in Bolivia is of concern. I have not had the opportunity to review the existing DoD plans, approaches, and actions for Bolivia. If confirmed, one of my priorities will be to review such plans, approaches, and actions and make recommendations to the Under Secretary of Defense for Policy.

I understand a new set of answers to the questions of interest to Senator McCain will be provided. The lid on Pandora’s box will, however, be kept closed and the nominee will be confirmed to the position for which he is highly qualified.  Along the way the ranking member and his staff has made a point regarding their role in oversight, the minority’s continuing place in the process, and the ranking member’s own place.

The complete original set of advance policy questions and answers can be found at the Senate Armed Services Committee website (pdf).