The Civilian-Military Divide: Obstacles to the Integration of Intelligence in the United States (Praeger Security International)

THE CIVILIAN-MILITARY DIVIDE

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THE CIVILIAN-MILITARY DIVIDE OBSTACLES TO THE INTEGRATION OF INTELLIGENCE IN THE UNITED STATES

Louise Stanton

PRAEGER SECURITY INTERNATIONAL An Imprint of ABC-CLIO, LLC

Copyright 2009 by Louise Stanton All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publisher. Library of Congress Cataloging-in-Publication Data Stanton, Louise, 1955– The civilian-military divide : obstacles to the integration of intelligence in the United States / Louise Stanton. p. cm. Includes bibliographical references and index. ISBN 978-0-313-35987-3 (hard copy : alk. paper) — ISBN 978-0-313-35988-0 (ebook) 1. Military intelligence—United States. 2. Intelligence service—United States. 3. Military intelligence— Social aspects—United States. 4. Intelligence service—Social aspects— United States. 5. Civil-military relations—United States. 6. Cooperation—United States. 7. National security—United States. 8. Terrorism—United States—Prevention. 9. Counterinsurgency—United States. 10. United States—Military policy. I. Title. UB251.U5S73 2009 355.30 4320973—dc22 2009025682 13

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This book is also available on the World Wide Web as an eBook. Visit www.abc-clio.com for details. ABC-CLIO, LLC 130 Cremona Drive, P.O. Box 1911 Santa Barbara, California 93116–1911 This book is printed on acid-free paper Manufactured in the United States of America

Contents Acknowledgments

vii

Abbreviations

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1

The Introduction

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2

The Security Environment

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U.S. Law

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The Hypothesis, Research Question, Methodology

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Intelligence: The Domestic Arrangements of the United States

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U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

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State Fusion Centers

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Planning

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Implications and Conclusions

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Appendixes A. War Paradigms

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B.

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Posse Comitatus Act

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Contents

C. Requirements: National Security Strategies

151

D. Collection: Terrorism Surveillance Program Status in the Courts and Congress 153 E.

Analysis: Intelligence Products

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F.

Members of the U.S. Intelligence Community—Legal Authority

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G. Members of the U.S. Intelligence Community—Descriptions and Chart of Members of USIC Revisited

165

H. Principles of Joint Operations

181

I.

The Operational Environment

183

J.

Full Spectrum of Operations

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K. Summary of Decisions on Information Sharing (Including Plans, Processes, and Organizations)

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L.

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The Commissions

Notes

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Bibliography

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Index

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Acknowledgments The origin of this book was my dissertation, and so I would like to acknowledge those who were influential in the development of the project. First and foremost, I would like to thank my advisor, Norman Samuels. He was my partner in this endeavor from the beginning. The combination of our respective interests from the outset enriched this dissertation considerably. He was generous with his time, energy, and contributions, and I always learned something from our meetings. I extend wholehearted thanks to my committee—Richard Langhorne, Elizabeth Hull, Annette Sobel, and Les Kennedy—who generously responded to my drafts and challenged me with their thought-provoking questions during the defense. I wish also to acknowledge Mark Anarumo, who conducted a daytrip to Maguire AFB. The experience left me with so much curiosity about military society that my dissertation is built on the security consequences of the separation between civilian society and military society. I also wish to thank the directors in my program, the Division of Global Affairs—Richard Langhorne, Yale Ferguson, and Alex Motyl—for their encouragement, support, and patience, and to Desiree Gordon, who runs the place. Without her good nature and good humor, this would have been a much different adventure. I also wish to thank Rutgers-Newark, which provided financial support to me during the final year of this process. Finally, I wish to express my gratitude to the fresh pair of eyes—John and Sue Morris at Editide. Last, but not least, a big thanks to friends and family who—throughout this process— listened patiently as I tried to explain what I was doing along the way.

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Acknowledgments

I also would like to convey much gratitude to all the participants involved in bringing this book to publication. In 2008, Adam Kane, then senior editor with Greenwood Publishers/PSI (and now with the Naval Institute Press), shepherded the proposal through the Publications Committee and to a final contract. Tim Furnish provided patience and hand-holding through some transitions. In 2009, Anthony Chiffolo, director of Praeger Publishers which is now part of ABC-CLIO, assured a smooth transition after the departures of Adam and Tim and after other changes. Valentina Tursini and Elizabeth Potenza facilitated the acceptance of the manuscript and moved it along to the Cadmus group. Colleen Simeral led the copyediting team and possessed the patience, diligence, and discipline to march us to every deadline. Steve Catalano, senior editor at Praeger, and his team designed the stunning book cover. Forgive me if I have missed anyone. Every author should be so lucky to have such a talented group working toward the completion of a book. To all, a huge thank you.

Abbreviations AFDD AFIA AFOSI AG AO AOR ASD ASDC3I AT CBRNE CCP CFR CG CGICC CGP CI CIA CIDCM CIFA CIFC

Air Force Doctrine Document Air Force Intelligence Agency Air Force Office of Special Investigations Attorney General Area of Operations Area of Responsibility Assistant Secretary of Defense Assistant Secretary of Defense—Command, Control, and Communications Antiterrorism Chemical, Biological, Radiological, Nuclear, and Explosive Consolidated Cryptologic Program Code of Federal Regulations Coast Guard Coast Guard Intelligence Coordination Center Coast Guard Publication Counterintelligence Central Intelligence Agency Center for International Development and Conflict Management Counterintelligence Field Activity Combined Intelligence Fusion Center

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Abbreviations

CINC CJCS CJCSI CM CMDRs CMO CMOC COG COIN COMINT COOP COP COW CrM CRS CS CSS DARP DCI DCP DEA DEIB DGIAP DHS DI DIA DIATP DICP DIP DIRD DISTP DITSUM DMCGP DNI DOD DODD DOE DOJ DOTMLPF DSRP DTIC ECO EEIB

Commander-in-Chief Chairman of the Joint Chiefs of Staff Chairman of Joint Chiefs of Staff—Intelligence Consequences Management Commanders Civil–Military Operation Civil–Military Operations Center Continuity of Government Counterinsurgency Communications Intelligence Continuity of Operations Common Operational Picture Correlates of War Project Crisis Management Congressional Research Service Civil Support Central Security Service Defense Air Reconnaissance Program Director of Central Intelligence Defense Cryptologic Program Drug Enforcement Administration Daily Economic Intelligence Brief Defense General Intelligence Application Program Department of Homeland Security Directorate of Intelligence Defense Intelligence Agency Defense Intelligence Agency Tactical Program Defense Intelligence Counterdrug Program Defense Imagery Program Defense Intelligence Reference Document Defense Intelligence Special Technology Program Defense Intelligence Terrorism Summary Defense Mapping, Charting, and Geodesy Program Director of National Intelligence Department of Defense Department of Defense Directive Department of Energy Department of Justice Doctrine, Organization, Training, Material, Leadership, Personnel, and Facilities Defense Space Reconnaissance Program Defense Technical Information Center Electronic Collections Online Economic Executives’ Intelligence Brief

Abbreviations

EH ELINT EO EP ESC FBI FEMA FID FINCEN FISA FISTs FM FP FPC FY GAO GDIP GEOINT GSA HD HN HS HSAC HSC HSPD HUMINT I&W IGO IM IMINT IN INR INSCOM IPB IR IRTPA ISE IW JAC JCS JFC JIACG

Executive Highlights Interception of Electronic Emissions Executive Order Emergency Preparedness Electronic Security Command Federal Bureau of Investigation Federal Emergency Management Agency Foreign Internal Defense Financial Crimes Enforcement Network Foreign Intelligence Surveillance Act Field Intelligence Support Teams Field Manual Force Protection Federal Preparedness Circular Fiscal Year General Accounting Office General Defense Intelligence Program Geospatial Intelligence General Services Administration Homeland Defense Host Nation Homeland Security Homeland Security Advisory Council Homeland Security Council Homeland Security Presidential Directives Human Intelligence Indications and Warnings Intergovernmental Organizations Intelligence Memorandum Imagery Intelligence Office of Intelligence Bureau of Intelligence and Research Army Intelligence and Security Command Intelligence Preparation of the Battlefield International Relations Intelligence Reform and Terrorism Prevention Act of 2004 Information Sharing Environment Irregular Warfare Joint Analysis Centers Joint Chiefs of Staff Joint Forces Command Joint Interagency Coordination Group

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Abbreviations

JIC JITF-CT JMIP JP JTTF LOC MACA MACDIS MASINT MCDP MCWP MID MOOTW MSCA MSCLEA NCIX NCPC NCTC NDP NFIP NG NGA NGO NIC NIC NID NIMA NIMS NIP NLC NMJIC NNSA NORAD NORTHCOM NRA NRO NRP NSA NSC NSC/DC NSC/PC NSC/PCC NSG

Joint Intelligence Centers Joint Intelligence Task Force for Combating Terrorism Joint Military Intelligence Program Joint Publication Joint Terrorism Task Force Library of Congress Military Assistance to Civil Authorities Military Assistance for Civil Disturbances Measurement and Signatures Intelligence Marine Corps Doctrinal Publication Marine Corps Warfighting Publications Military Intelligence Digest Military Operations Other Than War Military Support to Civil Authorities Military Support to Civilian Law-Enforcement Agencies National Counterintelligence Executive National Counterproliferation Center National Counterterrorism Center Naval Doctrinal Publication National Foreign Intelligence Program National Guard National Geospatial-Intelligence Agency Nongovernmental Organization National Intelligence Council Naval Intelligence Command National Intelligence Digest National Imagery and Mapping Agency National Incident Management System National Intelligence Program National League of Cities v. Usery National Military Joint Intelligence Center National Nuclear Security Administration North American Aerospace Defense Command U.S. Northern Command National Reconnaissance Agency National Reconnaissance Office National Response Plan National Security Agency National Security Council NSC Deputies Committee NSC Principals Committee NSC Policy Coordination Committees Naval Security Group

Abbreviations

NSGC NSI NSIC NSPD NSSES OACSI OCI ODCSINT ODNCI ODNI OE OFAC OGA OIA ONI ONSC OPSEC OSD OSINT OTFI PCA PDB PDD PHOTINT PHSAC PL PM-ISE PRA QDR RAID ROE SAC SCEs SECNAVIST SEIB SHAPE SIGINT SIOC SIR SLT SMO SOCOM

Naval Security Group Command National Security Information Naval Security and Investigative Command National Security Presidential Directives National Special Security Event Support Office of the Assistant Chief of Staff, Intelligence Office of Counterintelligence Office of the Deputy Chief of Staff for Intelligence Office of Defense Nuclear Counterintelligence Office of the Director of National Intelligence Operating Environment Office of Foreign Assets Control Other Government Agencies Office of Intelligence and Analysis Office of Naval Intelligence Office of National Security Coordination Operations Security Office of the Secretary of Defense Open Source Intelligence Office of Terrorism and Financial Intelligence Posse Comitatus Act President’s Daily Brief Presidential Decision Directive Photographic Intelligence President’s Homeland Security Advisory Council Public Law Program Manager of the Information Sharing Environment Primary Review Authority Quadrennial Defense Review Rapid Assessment and Initial Detection Rules of Engagement Senior Advisory Committees Service Cryptologic Elements Secretary of the Navy Instruction Senior Executive Intelligence Brief Supreme Headquarters Allied Powers Europe Signals Intelligence Strategic Information and Operations Center Special Intelligence Report State, Local, and Tribal Support for Military Operations Special Operations Command

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Abbreviations

SPIN SSTR

Space Intelligence Notes Stability, Security, Transition, and Reconstruction Operations TCP Tactical Cryptologic Program TELINT Interception of Data Relayed by Weapons During Tests TFFC Terrorist Financing and Financial Crimes TIARA Tactical Intelligence and Related Activities TRADOC Training and Doctrine Command UCMJ Uniform Code of Military Justice USAF U.S. Air Force USC United States Code USD(I) Under Secretary of Defense for Intelligence USN U.S. Navy USIC U.S. intelligence community USSC U.S. Supreme Court USSOCOM U.S. Special Operations Command USSPACECOM U.S. Space Command VPS Vice President’s Supplement WMD Weapon of Mass Destruction

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The Introduction

In the post-9/11 world, threats are defined more by the fault lines within society than by the territorial boundaries between them. From terrorism to global disease and environmental degradation, the challenges have become transnational rather than international. That is the defining quality of world politics in the 21st century. Final Report of the National Commission on Terrorist Attacks upon the United States.1 This is a new type of war. Final Report of the National Commission on Terrorist Attacks upon the United States.2

DISCUSSION After 9/11, the 9/11 Commission and others said that we have a major problem because the U.S. intelligence community (USIC) failed to predict the attacks and protect the United States. Therefore, they said, we need to unify efforts. The way the U.S. system of government is structured, it does not facilitate a unity of effort. This is not to say it is not possible, but it is not going to be easy. Sometimes, the country cannot respond the way it should. The response to Hurricane Katrina is an example. First, it was the

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The Civilian-Military Divide

mayor’s problem, then it became the governor’s problem, and, only as a last resort, did it become the President’s problem. The general question for this book is: Does the structure of the U.S. system of government permit a unity of effort in intelligence activities? My purpose is to examine—through the U.S. Constitution and other laws—whether or not this kind of unity of effort is being achieved or is achievable. To this end, I begin with a look at two areas—war and intelligence. First, I looked at the U.S. intelligence community. One of the most important discoveries is that, by most measures, the U.S. intelligence community is a predominately military community. This single fact—that the USIC is predominately military—is key to proceeding to answer the question of whether unity of effort is being achieved or is achievable. Then, I looked at military doctrine on war and intelligence. Once the President characterized the response to the attacks of 9/11 as war, the military was engaged. The military proceeded to develop a war strategy called the ‘‘Counterinsurgency Doctrine.’’ Like the 9/11 Commission, the military identified the threat as a global insurgency, specifically, Al Qaeda. Following the lead of the civilian policy makers, the doctrine describes a changed war paradigm in which there is a global insurgency and the response is a counterinsurgency (COIN). The nature of the counterinsurgency was described as an ‘‘intelligence war.’’ The counterinsurgency is bigger than the military, meaning that it requires participation and partnerships in a unity of effort among the police and other civilians and military sectors in a community. Local intelligence needs to be collected in order to understand the environment. Global intelligence also needs to be collected—information that is impacting the local environment. Both the local and global intelligence is needed to fight the insurgency. Then I looked at military doctrine on intelligence and discovered that it has acknowledged the changed war paradigm. My investigation into intelligence then proceeded to the state and local levels of government in the United States. State fusion centers are heeding the call for unity of effort. Beginning before the events of 9/11 and ramping up afterward, states initiated efforts to increase coordination and collaboration to counter terrorism within their jurisdiction. Since 2001, however, their activities have broadened from a focus on counterterrorism to all hazards. Yet, the national government, through the efforts of the Office of the Director of National Intelligence (specifically the National Counterterrorism Center), continues to focus on counterterrorism efforts. Moreover, Congress authorized a national fusion center initiative in 2007. The laws, the policies, and the plans are in place to heed the call for unity of effort, yet sharing appears to be minimal. Why is that? I wanted to know why there is a separation of efforts when the 9/11 Commission, other national commissions, and the U.S. military are calling

The Introduction

for a unity of effort between the military and police. My perspective is a legal one. I am looking at the U.S. Constitution and other laws. My contribution is to put this important endeavor—unity of effort in intelligence—on more solid ground. No doubt, there has been progress—mostly in planning though, according to public sources. Changes in this area are occurring and progress is continuously being made as I write this. It is a fluid situation and a dynamic period. Nonetheless, it is worthwhile to look more closely at this endeavor. This project lays out some of the obstacles that await the implementation and execution of the policies and plans. Everyone agrees that unity of effort is desirable—the Congress, the President, the Office of the Director of National Intelligence—and the states are taking steps towards this goal. There are challenges ahead. This book explores some of them. SECURITY ENVIRONMENT For the United States, the world changed on September 11th, 2001. The 9/11 Commission, established by Congress and the President, examined the facts and circumstances surrounding the 9/11 attacks, identified lessons learned, and provided recommendations to prevent future attacks. The 9/11 Commission Report defines the enemy as more than just terrorism; rather, the enemy is the threat posed by Islamic terrorism, especially the Al Qaeda network, its affiliates, and its ideology.3 The report notes that as early as 1998, Al Qaeda had a ‘‘global network of bank accounts and nongovernmental organizations,’’4 and was considered a ‘‘global terrorist network.’’5 In addition, a ‘‘global network of Islamist movements’’ consisting of fighters, camps, and guesthouses was in existence.6 This global threat represented a new threat paradigm. Following the attacks of 9/11, the President called for a ‘‘war on terrorism,’’ which is a central theme in the United States’ national security policy to this day. Today, though, President Barack Obama, Secretary of State Hillary Clinton, and Secretary of Homeland Security Janet Napolitano are refraining from using the term.7 The rise of radical political Islam, specifically Al Qaeda and its threat to the West and the United States, was not new and is well documented.8 Since 9/11, though, there has been debate and perhaps confusion over whether to prosecute those acts as crimes or as war. The President, who has a responsibility to integrate all aspects of national security policy—domestic, foreign, military, intelligence, and economic—was faced with a decision to pursue one of two national security paradigms. The first paradigm views the events as national security breaches, seeking to protect domestic security by relying upon police powers and law enforcement for their prosecution. This was the path pursued in the prosecution of the 1993 World Trade Center bombings.9 The second paradigm views the events as attacks on the sovereignty of the

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The Civilian-Military Divide

country, and seeks to protect national security by relying upon the war powers, depending largely on military and diplomatic power. Following 9/11, President George W. Bush chose the second paradigm. The attacks of 9/11 have changed the way the U.S. government characterizes and responds to threats. By 2001, the global movement had arrived on U.S. soil. The 9/11 Commission Report states that by 9/11, ‘‘FBI agents understood there were extremist organizations operating within the United States supporting a global jihadist movement and with substantial connections to Al Qaeda.’’10 Moreover, at a White House briefing on terrorism in 2001, Al Qaeda was described to then National Security Advisor Condoleezza Rice as ‘‘an adaptable global network of jihadist organizations and a lethal core of terrorist organization.’’11 Al Qaeda was further described as a new transnational threat with sleeper cells in 40 countries, including the United States.12 A 2007 National Intelligence Estimate judged that ‘‘the US Homeland will face a persistent and evolving terrorist threat over the next three years. The main threat comes from Islamic terrorist groups and cells, especially al-Qa’ida . . .’’13 Declaring war against a nonstate threat is not how war is typically understood. Chapter 2 examines conventional threats and responses and unconventional threats and responses. Since the creation of the nation-state, the conventional war paradigm has been generally understood to mean that war is a state activity conducted by the military for the purposes of defense and protection of state territory, people, and interests from foreign attacks. As such, the state is often viewed as having a monopoly on violence.14 In addition, war is considered the continuation of state policy by other means.15 Violence that is state-to-state is war.16 Organized violence should only be called war if it is waged by the state, for the state, and against the state.17 The Western or U.S. way of war has long been described as warfare based on either a strategy of annihilation or of attrition, and has focused on engaging the enemy in close combat to achieve a decisive victory.18 In contrast to conventional war, unconventional war or insurgency or revolutionary war, has been in existence for nearly the same period of time as has the nation-state. Insurgency and counterinsurgency are traditionally internal conflicts. Their nature and characteristics are instructive on the conduct of war at the local, internal, or domestic level. In the unconventional war paradigm, the threat is a nonstate actor: civilians from the local population who seek to bring about a fundamental change in the government, a change founded in a revolutionary ideology. The conflict is an internal, local activity conducted by civilian combatants for a protracted period of time. The target is the existing government and its security forces, including the police and military. Over the long term, the insurgents seek to create a climate of collapse through acts designed to create disorder and to provoke an overreaction by the government in the name of security. The intent is that this overreaction will then prompt citizens to call into question the

The Introduction

legitimacy of the ruling government. Unlike conventional war, an insurgency can start long before it resorts to the use of force.19 The battle for the population is a major characteristic of unconventional war because the exercise of political power (in this case, coercion in the name of security) depends on the tacit or explicit agreement of the people.20 The success of insurgents against conventional security forces is due to their knowledge of the local environment, that is, intelligence. The response to an insurgency is a counterinsurgency (COIN). Like the insurgency, its primary goal is to establish the legitimacy of the government. They seek to achieve this by keeping the population safe and secure in the face of repeated acts of disorder and terrorism. A COIN is a political– military effort that realizes that defeating the insurgency means understanding the environment and the enemy better than it does. This is intelligence. By the end of the Cold War, there was recognition that unconventional wars surpassed conventional wars. The contemporary conditions, discussed also in Chapter 2, that give rise to this condition are the end of the Cold War and globalization. The end of the Cold War created a power vacuum with the departure of the United States and the U.S.S.R., leaving weak and failed states in their wake. Struggles for power therein persist today. Globalization—the latest stage in a long accumulation of technological advances that has given human beings the ability to conduct their affairs across the world without reference to nationality, government authority, time of day, or physical environment21—is a factor in the security environment because it reduces barriers to communication and blurs boundaries. Global flows enable movement of people and the creation of widely dispersed diaspora communities. Global flows of information mean that images and news of events from around the world are broadcast globally. Global movement of money enables access to goods. In addition, globalization makes what is local more evident, so that any global movement has a corresponding local dimension, impact, and origin; a global insurgency is also a local insurgency. This type of insurgency is different from a traditional insurgency because external networks and connections exist that do not in a traditional insurgency. For example, it is not uncommon for a traditional insurgency to receive support from an external source. However, a local or global insurgency may receive support directly—financially, through diaspora communities—or indirectly—emotional and moral support when images of a terrorist attack are conveyed via media outlets or when Osama Bin Laden speaks on Al Jazeera and the worldwide media outlets pick up the broadcast. A global threat requires a global response. Current efforts by states worldwide to fight Al Qaeda are evidence of this. A local or global response would include domestic responses by state and substate communities. It follows then, that the United States’ local response would be a contribution to the global response.

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The Civilian-Military Divide

All countries have domestic arrangements to deal with security threats. For the United States, the 9/11 Commission calls for a political– military strategy that relies upon the integration of civilian and military activities in a unity of effort in intelligence to respond to the global threat. This is the new response paradigm. The strategy rests on three policy bases: First, attack terrorists and their organizations. Second, prevent the growth of Islamist terrorism. Third, protect against and prepare for terrorist attacks.22 Unity of effort in intelligence would be achieved by sharing intelligence within the national intelligence community and with the state and local civilian officials conducting intelligence activities in their operations. With regard to the United States fighting the war on terrorism, the 9/11 Commission recommends that the U.S. government shares information while protecting civil liberties.23 With regard to preparedness in the event of another attack, the 9/11 Commission Report was highly complimentary of the response at the Pentagon. The emergency response at the Pentagon represented a mix of local, state, and federal jurisdictions and was generally effective.24 Success in response and recovery at the Pentagon on 9/11 was a direct result of the collaboration of national military and state and local civilian organizations. This inquiry seeks to determine whether there is a match between the new threat paradigm and the new response paradigm. Specifically, it examines what happens when this global threat meets domestic arrangements. THE DOMESTIC RESPONSE The U.S. Constitution frames the discussion to answer this question. The U.S. Constitution is designed to distribute government power in order to prevent the concentration of power that would threaten individual liberty. Accordingly, the allocation of power among different government organizations is the foundation of the U.S. Constitution. Chapter 3 examines how three principles—the separation of powers, federalism, and the separation of the civilian sector from the military sector—impact prevention and preparedness activities. The U.S. Constitution defines two types of security threats: invasions, which are foreign and external, and domestic violence, which is internal and domestic. The responses to these threats involve three principles. The separation of powers principle involves the allocation of power and interaction of the three branches of the national government. The war powers of the United States reside exclusively in the national government; the states are expressly excluded from these activities. War activities are generally conducted on foreign soil and concern external threats. The conduct of war is also a national government activity and is carried out by the military. President Bush’s characterization of the attack and response to 9/11 as war,

The Introduction

Congress’s resolution on the use of force, and the activation of a military response stem from these constitutional authorities. The federalism principle concerns the allocation of power between the national government and the state governments. It is assumed that the states have original powers that predate the Constitution; among these are the police powers. In addition to the state governments, the national government has police powers. The police powers refer to the power and function of government, a system of rules, an administrative organization, and the use of force. The scope of the police powers includes laws and regulations that concern the health, safety, and general welfare of the people. They are relevant here because the police powers are the authority for crime prevention and emergency activities. Crime prevention and emergency activities are the province of police forces and the state militias. In general, the state and local governments are presumed to have primary jurisdiction over domestic threats and responses. An illustration of the police power is the proliferation of state fusion centers. The national government does not assist unless the emergency is beyond the capability of the individual states and the governor asks the President for help. The President’s declarations of national emergency in the aftermath of 9/11, the creation of homeland security apparatuses—including the Department of Homeland Security (DHS) and U.S. Northern Command (NORTHCOM)—and his policy statements calling for greater integration of intelligence between the USIC and state and local law enforcement are reflections of the federalism principle. The principle of separation of the civilian sector from the military sector is a legal and cultural tradition in the United States. The drafters of the Constitution had British military abuses fresh in their minds when they set out to write the Constitution. In the U.S. Constitution, these concerns manifested as civilian control of the military. Such control is designed to achieve two goals: first, to prevent the executive or legislative branches from using the military to wrest power from the people, and second, to prevent the military from escaping subordination to civilian authority. The control exists at the national level through the division of power between the Congress, which controls the budget and spending process, the President, who is the commander-in-chief (CINC), and the civilian chain of command. The control exists at the state and local level through the chain of command that begins with the governor, and through the Posse Comitatus Act, which makes it a federal crime for the military to be involved in law-enforcement activities except under very specific circumstances. The control exists at the citizen level through the Bill of Rights. The military and the state and local government officials rarely interact with one another. After analyzing the three principles, Chapter 3 examines the arrangements for planning for security, defense, war, and emergency preparedness. Planning for the country’s security includes national security planning (performed only at the

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The Civilian-Military Divide

national level), homeland security planning (performed at both the national and state levels), war planning (national level), and emergency preparedness planning (almost completely a state activity). Intelligence planning activities, though, are exclusively a national-level activity. Chapter 3 concludes that the U.S. system of government is a divided arrangement. This divided arrangement is evident in the U.S. response to 9/11: calling a war, declaring a national emergency, and engaging in crime prevention activities to prevent and prepare for another attack.

THE PROPOSITION Chapter 4 presents the thrust of this book. The general proposition is that a country’s system of government impacts its response to threats, specifically its intelligence activities. The specific proposition is that the U.S. constitutional government—and its principles of separation of powers, federalism, and the separation of civilian and military sectors—creates a divided arrangement in responding to threats, specifically in the country’s intelligence efforts. Does the divided arrangement of the U.S. system of government—characterized by separation of powers, federalism, and separation of civilian from military sectors—allow a unity of effort? The new response paradigm is an integrated civilian and military operation characterized by unity of efforts in intelligence operations. It is important to understand how U.S. intelligence activities are adapting to this new paradigm. First, I look at intelligence at the national level because the response to the 9/11 attacks is characterized as war. The domestic arrangements for intelligence activities in connection with war and national defense are coordinated through the USIC, its authority is in Title 50 War and National Defense of the United States Code (USC); and most of the resources for intelligence activities in the United States are in the USIC. Because my analysis of the USIC reveals that the activities and organization of the USIC is predominately military, I also look at military doctrine on counterinsurgency, homeland security—that is, homeland defense and civil support—and intelligence to see how they and any changes thereto since 9/11 enable the new response paradigm. Second, I look at intelligence at the state and local level because of their role in the security of communities, which contributes to the security of the country. Moreover, the state and local law enforcement approach to fighting terrorism is analogous to fighting and preventing crime. Since 9/11, approximately 56 state fusion centers have been created, and 42 are operational. I also look at post-9/11 efforts to lower the barriers to sharing between the USIC and the law-enforcement community, and between the USIC and the emergency-management community.

The Introduction

INTELLIGENCE IN THE UNITED STATES Intelligence in the United States is a divided arrangement. Intelligence is a maxim of war. The USIC is a national domestic arrangement for preventing war and avoiding surprise. The classic characterization of intelligence views intelligence in three ways: as knowledge, as the organization that produces the knowledge, and as the activities pursued by that organization.25 A more specific classic characterization is that intelligence is the national government organization that produces specialized knowledge.26 Intelligence in crime prevention activities is ‘‘law enforcement intelligence . . . the product of any analytic process that provides an integrated perspective to disparate information about crime, crime trends, crime and security threats, and conditions associated with criminality.’’27 Intelligence is gathered in criminal investigations and in the performance of general law-and-order activities. In emergency preparedness, intelligence is not a term used to describe gathering of information, though, no doubt, national, state, and local entities develop and maintain databases of information and resources for use during emergencies. To my knowledge, the military, in its subordinate and assisting capacity in domestic situations, has no role in these information-collection efforts. Chapter 5 focuses mainly on intelligence at the national level—its definition, the activities, and the organization and structure of the USIC. The legal definition of intelligence assumes the threat is foreign. Analysis of the activities of the USIC demonstrates that requirements, collection, and dissemination are focused on national security, national targets, and national sharing arrangements. In addition, analysis reveals that the requirements of the military dominate the collection activities by the USIC and that military operations are the primary consumer of intelligence product. Analysis of the organization and structure of the USIC and the public information on the intelligence budget suggests that most of its assets reside in the defense intelligence community and that its members are in the U.S. Armed Forces. I conclude that the USIC is predominately a military organization. The post-9/11 efforts to lower barriers between the USIC and the law-enforcement community conclude chapter 5. Some of these efforts include the creation of the Office of the Director of National Intelligence (ODNI), the Presidential Guidelines for an Information Sharing Environment (ISE), the creation of the position of Program Manager for ISE in the ODNI, and the ODNI Implementation Plan for the ISE. Because military activity is governed by military doctrine, it is necessary to have an understanding of how intelligence fits into U.S. military doctrine and how that has been changing. Because military doctrine on intelligence flows from military doctrine on war, it is necessary to have an understanding of how the military characterizes war.

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The Civilian-Military Divide

MILITARY DOCTRINE ON COUNTERINSURGENCY, HOMELAND SECURITY, AND INTELLIGENCE Because the USIC is a predominately military community, it is important to know how military doctrine treats war and intelligence. The military sees the value of intelligence as contributing to war planning, preparedness, and effectiveness. Since 9/11, the military acknowledges that a shift has occurred from conventional warfare, characterized by battles between states and large armies, to a prevalence of irregular warfare (IW),28 characterized by insurgencies fought by nonmilitary armies. In addition, the military acknowledges its dual roles in the President’s National Strategy for Homeland Security. Since prevention of and preparedness for war are military activities, it is important to understand how intelligence doctrines fit into war and homeland security. Chapter 6 examines four doctrines of the U.S. Armed Forces: Counterinsurgency (FM 3-24/MWFP 3-33.5), Homeland Security (Homeland Defense, JP 3-27), Civil Support (JP 3-28), and Joint Intelligence (JP 2-0). Since 9/11, the U.S. Army and U.S. Marine Corps reissued their counterinsurgency doctrines, recommending a unity of effort that integrates civilian and military efforts in intelligence operations. Intelligence doctrines have also been revised to acknowledge that unity of effort is one requirement in the new security environment. Since 9/11, the Joint Staff issued the homeland security doctrine for the first time, characterizing the military’s dual missions as homeland defense and civil support. The former protects the country from external threats; the latter supports civilian authorities in their response and recovery efforts. Since 2007, the homeland security doctrine was replaced by two separate doctrines—homeland defense and civil support. In doctrine, intelligence is not understood to mean collection of information for use in emergency-preparedness activities. Therefore, analysis of this doctrine reveals that intelligence, per se, is not collected. In domestic situations, the military is subordinate to a lead federal agency, which would have primary authority in the development of a database of resources in the event of an emergency. In crisis-management situations, the lead federal agency is the FBI, the lead federal law-enforcement agency. In one sense, the military characterization of threat and response in the new counterinsurgency doctrine deviates from the divided arrangement found in the U.S. Constitution. In another sense, the divided arrangement is preserved because the doctrine is not to be applied within the United States. The military response in homeland security situations reflects the divided arrangement, as does the intelligence doctrine. The 9/11 Commission and the Armed Forces of the United States recognize the changed threat paradigm. The 9/11 Commission and military also recognize that the appropriate response is a changed paradigm. The

The Introduction

appropriate response is a unity of effort—a political–military strategy that integrates civilian and military efforts by integrating their intelligence activities. STATE FUSION CENTERS Intelligence in the United States is a divided arrangement. Not only is intelligence a maxim of war and the USIC a national domestic arrangement for preventing war and avoiding surprise, intelligence is necessary for fighting and preventing crime and a tool and activity of state and local governments. State Fusion Centers are predominately the result of post-9/11 activity to integrate intelligence to address all hazards. Chapter 7 reviews these developments and decisions. PLANNING As the preceding discussion demonstrates, the security of the country is provided through a divided arrangement by the national, state, and local governments; their respective security forces are divided among the national military, state militias, and state and local law enforcement. Not surprisingly, planning and preparedness for the security function of government also reflect this design. Planning for the country’s security includes: national and homeland security planning, war planning, and emergency-preparedness planning. Intelligence planning activities, though, are exclusively a nationallevel activity. Chapter 8 examines planning activities for security in the United States. IMPLICATIONS OF A MISMATCH BETWEEN INTELLIGENCE ACTIVITIES AND THE CHANGED WAR PARADIGM There is no match between the new threat paradigm and the new response paradigm. The new response paradigm—unity of effort—would be difficult to achieve inside the United States. Chapter 9 discusses the implications of this conclusion. During the course of the research and writing of this book, these relationships continued to evolve and will undoubtedly evolve further.

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2

The Security Environment Chapter 2 discusses the security environment and contains four sections. The first section, ‘‘The Threat,’’ begins by describing the character of the terrorist attack on the United States on September 11, 2001. The 9/11 Commission refers to Al Qaeda as a ‘‘global terrorist network.’’ The next section, ‘‘Characterization of Threat and Response,’’ addresses two traditional but also current threats—other nation-states and insurgencies. This section also addresses the two traditional responses—conventional war and counterinsurgency. The next section, ‘‘Contemporary Conditions,’’ offers some explanations as to how the end of the Cold War and globalization might render distinctions between internal and external environments passe, and what that means for a response by a nation-state. The chapter closes with the 9/11 Commission’s recommendation on how to successfully respond to Al Qaeda. THE THREAT For the United States, the world changed on September 11, 2001 (9/11). In order to understand the events of that day, the National Commission on Terrorist Attacks Upon the United States1 (9/11 Commission) was created. Established by Congress and the President, it examined the facts and circumstances surrounding the 9/11 attacks and identified lessons learned. Its recommendations to prevent future attacks are contained in

The Security Environment

The Final Report of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission Report or Final Report). The 9/11 Commission characterizes the threat as a ‘‘global terrorist network’’2 and a ‘‘global network of Islamist movements.’’3 The report defines the enemy as not just terrorism but rather the threat posed by Islamic terrorism, especially the Al Qaeda network, its affiliates, and its ideology.4 The report notes that as early as 1998, Al Qaeda had a ‘‘global network of bank accounts and nongovernmental organizations,’’5 and was considered a ‘‘global terrorist network.’’6 In addition, a ‘‘global network of Islamist movements’’ consisting of fighters, camps, and guesthouses was in existence.7 This is the new threat paradigm. The rise of radical political Islam—Al Qaeda in particular—as a threat to the West, and the United States specifically, is not new and is well documented.8 What is new was the public’s discovery of its arrival on U.S. soil. The 9/11 Commission Report states that by September 11, 2001, ‘‘FBI agents understood there were extremist organizations operating within the United States supporting a global jihadist movement and with substantial connections to Al Qaeda.’’9 Moreover, at a White House briefing on terrorism in 2001, Al Qaeda was described to then National Security Advisor Condoleezza Rice, as ‘‘an adaptable global network of jihadist organizations and a lethal core of terrorist organization.’’10 Al Qaeda was further described as a new transnational threat with sleeper cells in 40 countries, including the United States.11 What’s new about this threat? The enemy is changeable and adaptable, a ‘‘Protean Enemy.’’12 Today’s terrorists and insurgencies are more networked and amorphous than rigidly structured, making them harder to identify and target. Recent research suggests that future insurgent threats are adapting into even more complex organizational structures, combining with existing criminal entities to form federated insurgent complexes with potent resources and malevolent intentions.13 Like insurgencies and terrorist activities in the past, today they also rely on local and external support although the nature of the support is different. Externally, support typically comes from other nation-states. Today, support can come from other states, groups, and individuals. Globally, there is worldwide connectivity. External support may come via communications outlets—news organizations, media outlets, and Web sites offering information and imagery—that facilitate involvement and economic support from individual supporters around the globe. Global communication can also be a significant source of volunteers, intelligence, and moral support for both sides of a conflict. Locally, insurgents and terrorists are moving into cities where people and money are,14 although leadership may remain in hiding.15 Diaspora communities are a source of local and/or external support. These globally dispersed communities, connected by improved information and transportation technologies, comprise a growing

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The Civilian-Military Divide

category of external participants who contribute significant resources in money and personnel to support their respective communities. Importantly, they can be a sanctuary for insurgents. As in the past, communications are important because the center of gravity for both the insurgency and the counterinsurgency is the population and its opinion of the respective sides of the conflict. Telecommunications technology grants anyone with access to a computer the ability to spread a message globally at little or no cost. The importance of popular opinion to an insurgency and to its counterinsurgency means that any avenue of communication dissemination is important. Moreover, the speed with which information and images can be transmitted anywhere and at any time means support for a cause can come from anywhere in the world. Information technology extends the potential support base of the adversary to a global scale. This extended support base can provide financial, material, or personnel support to the cause. Al Qaeda’s globally dispersed operations, facilitated by the Internet and modern telecommunications technology, make them a truly network-based adversary.16 Nation-states, traditionally holding the monopoly on violence, are getting competition from other actors seeking technologically advanced weapons. The nature of the global economy, abetted by modern computer technology, allows minor states, subnational groups, and even individuals to purchase weapons of mass destruction.17 Religion has been a factor in war for thousands of years. What is new is that religion is becoming an important ‘‘cause’’ of conflict and war. The difference is that individuals increasingly perpetrate terrorist acts with strong religious motivations as a source of justification. It is often used as a proxy for an ideology or abused as a rallying cry.18 One expert concluded, ‘‘the religious imperative is the most important defining characteristic of terrorist activity today.’’19 The rise of Islamic fundamentalism makes religion a relevant factor today. Terrorism and guerilla warfare have always been a method of attack for insurgents. The difference is the reach, scale, and consequences of such attacks. Ultraterrorism, or catastrophic terrorism, claims casualties in the thousands. The attacks of 9/11 were an example of this new type of terrorism. According to the 9/11 Commission, the threat is global; however, it also possesses a local dimension connected via advances in technology, communications, diaspora communities, networks of money, and criminal activity. The 9/11 Commission Report provided a glimpse of how a local organization became a global movement. Radical political Islam has yielded loosely affiliated but networked adversaries with local support in diaspora communities. In February 1998, from their headquarters in Afghanistan, Bin Laden and al-Zawahiri

The Security Environment Table 2.1 Summary of the Threat Actor Organization Location Support Communication Funding Moral support Terrorism Ideology Weapons

Civilians Local and globally connected Local, cities Phone and Internet Domestic and foreign Diaspora communities Communications Ultraterrorism Religion WMD

arranged for an Arabic language newspaper in London to publish a fatwa in the name of the World Islamic Front. It claimed that America had declared war against God and his messenger and called for the murder of any American in the world.20 Three months later, Bin Laden was in Afghanistan being interviewed by ABC-TV news at which time he reiterated his message.21 CHARACTERIZATION OF THREAT AND RESPONSE War is nothing but a duel on an extensive scale. We can envision the countless number of duels that make up a war by imagining two wrestlers. Each uses physical force to compel the other to submit to his will. Each endeavors to throw his adversary and, thus, render him incapable of further resistance. War, therefore, is an act of violence intended to compel our opponent to fulfill our will.22 Military theorist Carl von Clausewitz states that, ‘‘war is only a continuation of State policy by other means.’’23 Revolutionary theorist, Mao TseTung, also believes ‘‘war is the continuation of politics.’’ ‘‘In a word, war cannot for a single moment be separated from politics . . . War breaks out to sweep away the impediments in the way [of politics’ progression].’’ ‘‘It can therefore be said that politics are bloodless war while war is the politics of bloodshed.’’24 Threats come from other nation-states or nonstate actors, and the nation-state response is war or another type of military operation. Insurgency and counterinsurgency are examined because traditionally these are internal conflicts. Their nature and characteristics impact the conduct of war at the local, internal, or domestic level. This section will look at both of these forms in its subsections: The Conventional Threat: Another State, The Response: The Conventional War Paradigm, The Unconventional

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The Civilian-Military Divide

Threat: The Insurgency, and The Response: The Unconventional War Paradigm. This book attempts to understand how a nation-state responds domestically to a global threat. This question confounds the conventional paradigm of war wherein the threat is external, another state is a threat, and the response is a military one fought abroad. So, it is important to understand how the nation-state considers threats and war. This question also does not fit well with the unconventional war paradigm of insurgency and counterinsurgency because these are domestic conflicts. If a new paradigm of war is emerging, it is important to understand what the conventional and unconventional paradigms offer and how they are not quite right to meet the global threat. The Conventional Threat: Another Nation-State State-to-state violence is war.25 Organized violence should only be called ‘‘war’’ if it was waged by the state, for the state, and against the state.26 The conventional war paradigm considers security a function of the state, that another state is a threat, that war is a state activity conducted by the military in order to protect the boundaries and population of the state, and that war is conducted external to its boundaries. In addition, war is conducted in the international system. This section will discuss these features. When did modern war begin? The earliest date for the beginning of modern war was at the creation of the state in 1648. The threat is the state. The response is also by the state, usually its military. The state is central to discussion on war because the state, as an institution, possesses the people, the resources, and the arms to conduct war. In this regard, the state is said to have a monopoly on violence. ‘‘A state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.’’27 The use of force is allowed to the extent the state permits it. The state is considered the sole source of the ‘‘right’’ to use violence.28 The state’s ability to use violence is predicated on its legitimacy or the trust the people have in the state to govern. A characteristic of the state relevant to war is its sovereignty. Sovereignty means many things to many people, but there is general agreement that sovereignty incorporates the notion that the state has territory and boundaries; that is, internal and external, domestic and foreign, dimensions. Central to the notion of territory is its internal and external dimensions. The state’s first function is to assure security from internal sedition and external invasion.29 Defending territory and population is the function of the state. Internally and domestically, the state uses coercive laws and violence to maintain order through the criminal justice system. Externally and in foreign places, the state wages war. When a state possesses sovereign powers, it has the power and authority to govern.

The Security Environment

In the conventional war paradigm, the state engages in war in the international system. In the conventional war paradigm, there is no notion of internal or domestic war because war is a state activity in the international system, which is external and foreign. International relations (IR) theory is relevant here because international politics is concerned with power—who will survive, who will govern, and who has legitimate authority—the political stakes when a war occurs. In general, IR theorists focus on the states, ranging from their importance to their decline. Following are the salient features of the various IR schools. Realists* view the states as the main actors in world affairs and view each state as pursuing its national interests defined as power. Neorealists  focus on the structure of power in the international system rather than on the individual states, though they are important. They view the states as unipolar, bipolar, or multipolar. In addition, neorealists focus on the distribution of capabilities. Interdependence theoristsà focus on states but are interested in how cooperation arises in an anarchic world. The English school of interdependence theorists asserts that states pursue cooperation as naturally as conflict and that state power is receding as crime and corruption are on the rise. If this continues, they argue, statecentric theories will need to be reevaluated. Constructivism consists of two schools. The first school} is statecentric, and the second school** thinks the states are important but not the only actors. The first school sees the world as an interchange between people and the world, i.e., agent and structure. Constructive theorists argue that one’s way of seeing the world is one’s perception, which does not reveal all aspects of objective reality. Such perceptions have consequences. These constructivists see the states as agents. The second school agrees with the first school but also believes that the states are not the only actors. Moreover, it argues that the rules form part of the structure of the world. Postmodern theorists believe the world is unknowable and that there is no objective reality, that everything is opinion and there is no correct or incorrect approach. The postinternational position   asserts that states are actors in the international system but there are others, referred to as ‘‘spheres of authority’’ and ‘‘polities.’’ For this school, globalization is remapping the world’s political space by adding new actors, prompting a new look at issues of state power and autonomy, and challenging characteristics of the states, such as their internal and external features. Moreover, Representatives of different IR schools of thought include: * Henry Kissinger, Hans Morgenthau, and Condoleezza Rice   Kenneth Waltz à Robert Keohane, Joseph Nye } Alexander Wendt ** John Riggie, F. Kratochwil    James Rosenau, Yale Ferguson

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this school is interested in the distinction between states and nation-states, whereby perhaps the sheer exercise of power by a state is not enough to govern but rather there needs to be a connection. The ‘‘state’’ then is a legal notion, whereas ‘‘nation’’ implies a people. The Response: The Conventional War Paradigm In the conventional war paradigm, definitions of security are closely tied to a state’s defense of its interests by military means.30 At its most fundamental level, the term ‘‘security’’ has meant the effort to protect a population and territory against organized force while advancing state interests. The state is the entity that guarantees security; within this state-centered analysis, threats typically have been perceived as military challenges and have traditionally been countered with armed force. Thus, in a conventional war paradigm, national security is defined in military terms and capabilities. Vis- a-vis other states, the security dilemma is a structural notion; states are faced with an unresolvable uncertainty about the military preparations made by other states. If mistrust is mutual, a dynamic action– reaction cycle may well result, which will take the fears of both to higher levels. Insecurity breeds further insecurity, with the ever-present potential for war breaking out.31 Accordingly, the Cold War period was characterized as a period of insecurity because of the structure of the international system. Paradoxically, this bipolar world was structured and did provide stability. The core national interest of all states is survival. While a state has many interests—economic, environmental, and humanitarian—if its existence is jeopardized, these other interests are also jeopardized. War is ‘‘the fate of mankind, the inevitable destiny of nations.’’ This not as a matter of ideology, but of biology: the unavoidable struggle for survival.32 It is from the nature of humankind that we can seek to explain and understand the essential features of international politics: competition, fear, and war.33 The ‘‘drives to live, to propagate, and to dominate are common to all men.’’34 A second aspect of human nature is the struggle for belonging, a struggle that is often violent.35 According to the realists, power is ‘‘man’s control over the minds and actions of other men.’’36 In a conventional war paradigm, war is conducted by national military forces. Carl von Clausewitz, an influential military theorist and author of On War, discusses war at the strategic level. He is discussed here because two of his principles, embedded in Western military practices and observed by the U.S. military, are relevant to the discussion. They are Trinitarian War, which incorporates war as an extension of state policy, and political control of the military. Trinitarian War, or the notion that war always involves three parts—the people, the government, and the army—is very much part of the U.S. military ethos. Clausewitz believed that war is a

The Security Environment

social activity, a human activity filled with emotion and governed by the society that conducts it. Elaborating on the introductory quotation to chapter 1: War is, therefore . . . a wonderful trinity, composed of the original violence of its elements, hatred and animosity, which may be looked upon as blind instinct; of the play of probabilities and chance, which make it a free activity of the soul; and of the subordinate nature of the political instrument, by which it belongs purely to reason. The first of these three phases concerns more the people; the second, more the General and his Army; the third, more the Government. The passions which break forth in War must already have a latent existence in the peoples. The range which the display of courage and talents shall get in the realm of probabilities and of chance depends on the particular characteristics of the General and his Army, but the political objects belong to the Government alone. These three tendencies, which appear like so many different lawgivers, are deeply rooted in the nature of the subject, and at the same time variable in degree. A theory which would leave any one of them out of account, or set up any arbitrary relation between them, would immediately become involved in such a contradiction with the reality, that it might be regarded as destroyed at once by that alone. The problem is, therefore, that the theory shall keep itself poised in a manner between these three tendencies, as between three points of attraction.37

‘‘War is only a continuation of State policy by other means.’’38 Clausewitz also wrote about degrees in war. ‘‘There may be Wars of all degrees of importance and energy, from a War of extermination down to the mere use of an army of observation.’’39 Though an advocate of absolute war, Clausewitz acknowledged that in modern war there may be limited political objectives and, thus, limited war.40 He said: War is nothing but a duel on an extensive scale. If we could conceive as a unit the countless number of duels which make up a War, we shall do so by supposing to ourselves two wrestlers. Each strives by physical force to compel the other to submit to his will: each endeavors to throw his adversary, and thus render him incapable of further resistance. War therefore is an act of violence intended to compel our opponent to fulfill our will.41

In U.S. history, there are also ‘‘American Wars.’’42 At the turn of the 20th century, they were known as small wars; during and after the Cold War, they were referred to as low-intensity conflicts or military operations other than war. Borrowing from a definition by a British official at the end of the 19th century, Boot defines them as ‘‘campaigns undertaken to suppress rebellions and guerilla warfare in all parts of the world where organized armies are struggling against opponents who will not meet them in the open

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field.’’43 The term ‘‘small war’’—a literal translation of the Spanish word ‘‘guerrilla’’—refers to the tactics employed, not the scale of the combat. Clausewitz has his critics, particularly with regard to the idea of the Trinitarian War. First, Martin van Creveld suggests that ‘‘war’’ as conceptualized by Clausewitz’s Trinitarian model is not the best way to understand the conflicts of the 20th and 21st century.44 Since 1648, there have been interstate wars but also intrastate violence by anarchists, guerilla uprisings, and revolutionary fervor. Such conflicts include total war, civil war, colonial war, and people’s war. In the post–Cold War period, few states are waging war; rather tribes, ethnic groups, sects, and religious individuals are waging conflicts. For example, in many developing countries in Africa and Asia, there has been no time for nation-building much less establishing armies.45 Van Creveld suggests that World War II was the turning point in the obsolescence of the Trinitarian War because entire countries were engaged in war and because the violence and atrocities exceeded boundaries of states (e.g., Hitler’s Germany and Tito’s Yugoslavia). Second, advances in technology following Clausewitz’s death were modern developments that began to transform economics, technology, and war. Colmar von der Goltz, in The Nation in Arms, suggests that technology integrates the resources of entire countries; thus, future wars would not be fought by armies as traditionally understood. Rather, an entire nation could ‘‘take up arms’’ or mobilize.46 Third, Erich Ludendorff in Total War, also challenges the Trinitarian War concept with regard to war’s subservience to politics. He suggests that the entire country was to become an army to support the war-making apparatus. Moreover, he suggests that the supreme commander is the one in charge of the war. This leader is always in charge because the country is always preparing for war.47 Notwithstanding these critics, the U.S. Army appears to adhere to Clausewitzian principles. War is war and strategy is strategy. Strategically approached, there are only war and warfare. It does not matter whether a conflict is largely of a regular or an irregular character; Clausewitz’s general theory of war and strategy applies equally to both. The threat or use of force is instrumental for political purposes. The kinds of warfare are of no relevance whatever to the authority of the general theory of strategy. In short, irregular warfare, waged by a range of irregular enemies, is governed by exactly the same lore as is regular warfare, viewed strategically.48 The Unconventional Threat: The Insurgency Threat: Insurgency The state and its military are not the only means of taking power by force; the other way is by unconventional war. In general, an insurgent

The Security Environment Table 2.2 Characteristics of Conventional War Paradigm—Threat and Response Nature

Threat/Actor Conduct of War Goal End State Target Battlefield Weapon

Violent clash of interests Continuation of politics Submission to one’s will Nation-state By the military Defense of the state Security of population, territory, interests Another state Defined territory Military arsenal

seeks to challenge the legitimacy of any or all of the political community, political system, authorities, or policies. The strategic objective of an insurgency is the climate of collapse so that the insurgent can seize state power. Insurgency is not a new phenomenon; as one insurgency theorist notes, ‘‘Roman armies could have reported from Gaul, Judaea, or elsewhere. Indeed, insurgency has probably been the most prevalent type of armed conflict since the creation of organized political communities.’’49 Insurgency may be defined as a struggle between a nonruling group and the ruling authorities in which the nonruling group consciously uses political resources (e.g., organizational expertise, propaganda, and demonstrations) and violence to destroy, reformulate, or sustain the basis of legitimacy of one or more aspects of politics.50 The reason insurgencies are successful is because of the participants’ knowledge of the environment; this is their asymmetric advantage against conventional forces. Characteristics of Insurgency Insurgency possesses seven characteristics. First, it is distinguished from conventional war because an insurgency has a cause, an ideology, a revolutionary objective.51 Without a cause, the insurgency cannot persuade the population to join or assist in the campaign. Qualities of the cause include: a large part of the population must be able to identify with the cause; the counterinsurgency cannot be able to espouse the same cause; and the essential social mobilization base remains the same while the cause changes over time as the insurgency adapts. With the right cause, the insurgency can mobilize recruits. Combined with an intermixing of attacks on those aiding the new regime, a successful cause increases insurgent power while blunting the counterinsurgency’s intelligence capabilities. Over time, as the new regime appears

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The Civilian-Military Divide

powerless to prevent terrorism and restore stability, the mobilization potential of the cause increases when propaganda arms of the insurgency identify the new regime as the root of instability.52 Second, in an insurgency, at least one of the belligerents is a state and the other is a nonstate actor indigenous to the country in which it fights. Third, the goal of the insurgency is the destruction of the existing order, that is, the police and military.53 This is accomplished by promoting disorder, which is inexpensive and disrupts the economy. ‘‘If an insurgent movement can, at a cost which is indefinitely acceptable, impose costs on a government which are not indefinitely acceptable, then, while losing every battle, it is winning the war.’’54 Fourth, the aim of the insurgency is the seizure of state power. This is accomplished by creating disorder and impairing the government’s ability to manage the disorder. If the government is unable to provide security for the population, the insurgency has created a climate of collapse. At this point, the insurgents are fighting the government for legitimacy. If the insurgents succeed, they have established the legitimacy of a new government with the local population and their acceptance of its capacity to coerce where necessary.55 The battle for the population is a major characteristic of revolutionary war; the exercise of political power depends on the tacit or explicit agreement of the people, or, at worst, its submissiveness.56 Fifth, the battlefield of an insurgency is undefined, although it is usually internal to a country’s territorial boundaries, often with external influences. Although, in many cases, the insurgents were easily identifiable national groups, this does not alter the strategically important fact that they were challenging a local ruling power controlling the existing administration, police, and armed forces. In this respect, colonial revolutionary wars have not differed from purely indigenous ones.57 Sixth, the duration of an insurgency is indefinite. It is a protracted struggle, and the revolutionaries must have clear aims and goals and must generally be willing to pursue these goals over long periods. Finally, the weapons of insurgents are terrorism and guerilla warfare.58 Terrorism is a form of warfare in which violence is directed primarily against civilians or economic assets rather than military and police forces. The targets are chosen to maximize political impact. Terrorist organizations are individuals organized covertly into cells. Their actions are familiar— assassinations, bombings, kidnappings, and so forth. Although terrorism has generally occurred within the borders of a state whose political community, system, authorities, and policies are the focus of the violence, since the mid-1970s, there has been a tendency for the violence to be outside such a state. ‘‘Because these acts are carried out by autonomous, nonstate actors, they have been referred to as transnational terrorism to distinguish them from similar behavior on the part of individuals or groups controlled by sovereign states (international terrorism).’’59

The Security Environment

Insurgent terrorism is purposeful violence that seeks specific short-term, intermediate, and long-term goals. The short-term goal is to create disorder. The intermediate goal is not so much to deplete the government’s physical resources as it is to erode its psychological support by instilling fear into officials and their domestic and international supporters.60 The long-term goal is to change the political community, political system, authorities, or policies. Guerilla warfare differs from terrorism insofar as the primary targets are the government’s armed forces and police—or their support units and, in some cases, key economic targets—rather than unarmed civilians.61 Guerilla warfare ‘‘is a type of warfare characterized by irregular forces fighting small-scale, limited actions—generally in conjunction with a larger political–military strategy—against orthodox military forces. Guerilla warfare has proven to be an effective method in an insurgency to challenge a far better resourced opponent, the military. Guerilla warfare is a method employed by those seeking to force a militarily superior opponent to accept their political objectives. Ideally, guerillas are those who fight against ostensibly more powerful forces by unexpected attacks against vulnerable targets, and who are sustained by popular support, high morale, good intelligence, secure bases, and foreign assistance.62 Not everyone agrees that terrorism and guerilla warfare can be distinguished. ‘‘Urban guerilla warfare’’ is terrorism in a new dress.63 The essence of guerilla warfare is to carry out swift, successful attacks on isolated posts, small units, and supply lines of the enemy. Terrorism, here understood to be the deliberate targeting of civilians for death or injury, has nothing to do with guerilla warfare per se; nevertheless, guerilla movements have often resorted to it.64 In guerilla warfare, tactics are politics, or at least they should be. Hence, first and foremost, counterinsurgents should make every effort to abstain from tactics that harm or antagonize civilians. They must also guard against providing guerillas the opportunity to score victories, even small ones.65 Mao Tse-tung provides a summary of the basic features of guerilla warfare: What is basic guerilla strategy? Guerilla strategy must be based primarily on alertness, mobility, and attack. It must be adjusted to the enemy situation, the terrain, the existing lines of communication, the relative strengths, the weather, and the situation of the people. In guerilla warfare, select the tactic of seeming to come from the east and attacking from the west; avoid the solid, attack the hollow; attack; withdraw; deliver a lightning blow, seek a lightning decision. When guerillas engage a stronger enemy, they withdraw when he advances; harass him when he stops; strike him when he is weary; pursue him when he withdraws. In guerilla strategy, the enemy’s rear, flanks, and other vulnerable spots are

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The Civilian-Military Divide his vital points, and there he must be harassed, attacked, dispersed, exhausted, and annihilated.66

The term ‘‘guerilla’’ was originally used to describe military operations carried out by irregulars against the rear of an enemy army or by local inhabitants against an occupying force. More recently it has been applied to all kinds of revolutionary wars and wars of national liberation, insurrections, peasant wars, and terrorist acts (such as hijacking airplanes or kidnappings). It has been applied to happenings in the theatre and the arts, to certain activities in universities and even in kindergarten. In short, the term has become almost meaningless, partly as a result of such indiscriminate use but also because there are real difficulties. Regular armies may use guerilla tactics, but so may bandits; guerilla movements have transformed themselves into regular armies but the opposite has also happened. Not all unconventional warfare is ‘‘guerilla’’ war, nor should it be used as a synonym for revolutionary politics, civil war (such as in Lebanon and Angola), or terrorism.67 T. E. Lawrence,68 who some consider the grandfather of guerilla warfare, offers these guidelines for the conduct of guerilla warfare: First, coordinate political goals and military operations to complement national goals. Second, ‘‘seek for the enemy’s army, his centre of power, and destroy it in battle.’’69 Third, ‘‘the printing press is the greatest weapon in the armoury of the modern commander.’’70 Fourth, the value of irregulars lies not in face but in depth.71 Fifth, it was the threat of attack that made the enemy wait, and, finally, denied them targets.72 Insurgent Strategies There are five different insurgent strategies for a successful insurgency, inspired by different revolutionaries. This section briefly describes the strategies created by Vladimir Lenin, Mao Tse-tung, and the progeny of Mao including, Vo Nguyen Giap, Che Guevara, and Carlos Marighella. In 1902, Vladimir Lenin wrote What Must Be Done?, a political essay on his theory of revolution. His theory for success consisted of two elements: a political party of professional revolutionaries and an ideology. The Bolshevik Party became Lenin’s party, and in a 1917 coup they seized power from the government in Russia for the period of 1917–1924. Lenin argued that the most basic need of the revolution was a coherent, strictly controlled party of revolutionaries dedicated to the overthrow of tsarism.73 Mao is different from Lenin in that the latter’s model did not apply to China, an agrarian society with a weak industrial sector. Mao turned to the countryside and peasantry for support for his agrarian-based revolutionary war.74 Mao is similar to Clausewitz in that Mao believes, ‘‘war is the continuation of politics.’’ ‘‘In a word, war cannot for a single moment be separated from politics . . . War breaks out to sweep away the impediments in

The Security Environment

the way [of politics’ progression] . . . It can therefore be said that politics is war without bloodshed while war is politics with bloodshed.’’75 His reasons for why politics cannot be separate from war include that success depends upon the unity of the army and people, support from international forces, and the support of the people in enemy country. Similar to the Western way of war or vice versa, annihilation of the enemy is the goal. ‘‘The first law of war is to preserve ourselves and destroy the enemy.’’76 ‘‘All guiding principles for military operations proceed without exception from [this] one basic principle.’’77 ‘‘In a revolutionary war, this principle is directly linked with the basic political principle . . . How to preserve oneself when asking for ultimate sacrifice of dying in pursuit of aims? There is a unity of opposites: such sacrifice is required for annihilating the enemy and this is preserving one self in the complete sense.’’78 Like Lenin, Mao Tse-tung also contends that an ideology is a necessity for revolution: ‘‘The fundamental difference between patriotic partisan resistance and revolutionary guerilla movements is that the first usually lacks the ideological content that always distinguishes the second.’’79 The Theory of Protracted War Mao Tse-tung’s contribution to revolutionary war was his theory of protracted war. It is only through the cumulative effect of many campaigns and battles of quick decision, it is only when many victories are won in such offensive campaigns and battles through quick decision, that we can attain the aim of a strategy of protraction, gain time for strengthening our resistance, and simultaneously expedite and await the changes in the international situation as well as the enemy’s collapse from within, so as to launch a strategic counter-offensive . . . [to achieve the ultimate aim—annihilate the enemy]. These results are to be achieved mainly through regular warfare.80

There are three classical phases of revolutionary war:81 1. Strategic defense (protection of self) 2. Guerilla warfare 3. Counteroffensive (annihilation of enemy)

When viewed from both sides of the conflict: Phase 1—the enemy’s strategic offensive and our strategic defensive; Phase 2—enemy’s strategic defensive and our penetration for the counteroffensive; Phase 3—our strategic counteroffensive and the enemy’s strategic retreat.82

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In Phase 1, the objectives are to persuade as many people as possible to commit themselves to the movement so that it acquires ‘‘mass.’’ The first phase is devoted to organization, consolidation, and preservation of regional base areas situated in isolated and difficult terrain. Here volunteers are indoctrinated, and, from here, agitators and propagandists set forth to ‘‘persuade’’ and ‘‘convince’’ inhabitants to support. Thus, there is woven a protective belt of sympathizers willing to supply food, recruits, and information.83 As in Phase 1, persuading people to commit is part of Phase 2. Toward this objective, the local home guards or militia are formed. The militia is a backup for the better-trained and better-equipped guerillas. The home guards form an indoctrinated and partially trained reserve. They function as vigilantes. They collect information, force merchants to make ‘‘voluntary’’ contributions, kidnap, etc. ‘‘Their function is to protect the revolution.’’84 In Phase 2, direct action is employed. Acts of sabotage and terrorism multiply; collaborationists and ‘‘reactionary elements’’ are liquidated. Attacks are made on vulnerable military and police outposts; weak columns are ambushed. In Phase 3, the insurgents commit regular forces (which have been carefully husbanded up to this point) in a final offensive against the government. The third phase will recover lost territory, will take over state and war apparatus, and an ideology will prevail. The basic principle of guerilla warfare is the offensive.85 Guerilla warfare is different from regular warfare only in degree and in the form of manifestation. Offensives in guerilla warfare generally take the form of surprise attacks. In regular warfare there are relatively few cases of catching the enemy unprepared.86 In summary, Mao Tse-tung advocated that the aim of revolutionary war is to destroy existing society and its institutions and replace them with a completely new state structure.87 He suggested that the constituent parts of war were military, economic, political, social, and psychological.88 Vo Nguyen Giap, Ernesto Guevara de la Serna—also known as Che Guevara—and Carlos Marighella are progeny of Mao and worth mentioning because they made contributions to revolutionary war theory. During the second Vietnam War (latter 1950s until its conclusion in the 1970s), Giap was a four-star general who led the Viet Minh group and the People’s Army of Vietnam under the political leadership of Ho Chi Minh of the Democratic Republic of North Vietnam. In theory and practice, Giap followed the teachings of Mao Tse-tung. He conducted the three-phase revolutionary war.89 Throughout the protracted war, Giap’s force structure strategy was to mobilize all the people to fight.90 In the final phase, there was cooperation between the Viet Cong guerillas and North Vietnamese regular army, which posed a major problem for the U.S. citizens located in the Demilitarized Zone (DMZ). In three areas, though, there were differences from Mao’s strategy and experience. First, Giap was fighting a powerful outside government. To

The Security Environment

overcome this disadvantage, Giap launched an aggressive attack on the enemy’s ‘‘center of gravity.’’91 Giap knew that the American center of gravity, meaning its strength and weakness, was the public’s opinion of the war. It culminated with the Tet Offensive. Even though the United States could claim the Tet Offensive a ‘‘win,’’ it was also a ‘‘win’’ for Giap because it eroded U.S. public support for the war. Giap considered this one of his greatest achievements.92 A second distinction from Mao was the material and moral support North Vietnam received from China and the USSR. A third distinction was the Viet Cong’s reliance on violence against civilians as a cardinal method of the insurgency.93 This was not behavior that Mao advocated; on the contrary, as the people were the support for the revolution there was to be no disrespect or mistreatment of civilians. Ernesto Guevara de la Serna was a follower of Mao Tse-tung, a proponent of Marxism, and believer that revolutionary war is needed to achieve the ideological objectives. He, with the Castro brothers, had a role in the overthrow of the Cuban government of General Fulgencio Batista in 1959. Guevara served in different roles in the government and resigned in 1965. He advocated anticapitalist foreign policy, creation of a Socialist revolution, and preparation for direct military conflict with the United States. The Cuban Revolution taught him several things:94 First, it is not possible to wage a successful insurgency against a democratic regime.95 He discovered that the aphorism, ‘‘the ballot box is the coffin of insurgency,’’ is true.96 Another contribution was that favorable conditions need not be present, the insurrection can create them. In 1969, Carlos Marighella wrote the textbook on urban guerilla warfare,97 the Minimanual of the Urban Guerilla, which is based on his experiences in Brazil. Like those who preceded him, Marighella’s strategy of revolutionary war is offensive, based on attrition and protracted struggle, and with the objective of replacing the existing system. While he agreed with Giap that attacking the center of gravity is important, Marighella added attacks on economic centers: ‘‘to hit them at their vital center, with preferential and systematic attacks on the banking network—that is to say, the most telling blows were leveled against capitalism’s nerve center.’’ The ‘‘war of nerves’’98 refers to the combination of actions carried out with specific political objectives and of communication of these actions through a mass communications system. The war of nerves, or psychological war, is an aggressive technique, based on direct or indirect use of mass means of communication and news transmitted orally in order to demoralize the government. The object of the war of nerves is to misinform, spreading lies among the authorities (an activity in which everyone can participate), thus creating an air of nervousness, discredit, insecurity, uncertainty, and concern on the part of the government.99

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Like revolutionaries before Marighella, the aim of the urban guerilla is to destroy the existing social, political, and economic system. The urban guerilla is not afraid of dismantling and destroying the present economic, political, and social system, for his aim is to help the rural guerilla and to collaborate in the creation of a totally new and revolutionary social and political structure, with the armed people in power.100 Insurgent Forces In the United States, we go to considerable trouble to keep soldiers out of politics, and even more to keep politics out of soldiers. Guerillas do the exact opposite. They go to great lengths to make sure that their men are politically educated and thoroughly aware of the issues at stake.101 When we speak of the guerilla fighter we speak of the political partisan, an armed civilian whose principal weapon is not his rifle or his machete but his relationship to the community, the nation, in and for which he fights. The guerilla, who is of the people in a way that the government soldier cannot be (for if the regime were not alienated from the people, whence the revolution?), fights with the support of the noncombatant civilian populace: it is his camouflage, his quartermaster, his recruiting officer, his communications network, and his efficient, all-seeing intelligence service. Without the consent and active aid of the people, the guerilla would be merely a bandit, and could not long survive. If, on the other hand, the counterinsurgent could claim this same support, the guerilla would not exist, because there would be no war, no revolution. The cause would have evaporated, the popular impulse towards radical change—cause or no cause—would be dead.102 Table 2.3 compares the guerrilla’s basic resources with those of the traditional army. By studying this table, we can see that the guerrilla’s greatest advantages are his perfect knowledge of an area (which he himself has chosen) and its potential, and the support given him by the inhabitants. The advantages of the traditional army are imposing superiority in numbers and in material, practically unlimited sources of supply, and the advantages of command and extended maneuver granted by modern methods of communication and transport.103 Summary In the unconventional war paradigm, the insurgency is composed of civilian actors—armed and unarmed. An insurgency is an internal and domestic conflict. A fundamental characteristic of an insurgency is an ideology or revolutionary objective that motivates the insurgents to act.

The Security Environment Table 2.3 Comparison of the Traditional Army and the Guerrilla Band Traditional army

Guerrilla band

1. Has large numbers of well-armed troops, ready supplies of food and ammunition.

1. Has small numbers of poorly armed troops (at least at the beginning of hostilities), difficulty in obtaining supplies of food and ammunition. 2. Can move only on foot.

2. Can move quickly over favorable terrain (aviation, motor vehicles, boats, etc.). 3. Has a well-organized communications network, which gives it great control advantages. BUT 1. Experiences great difficulty in moving about guerrilla country; usually has imperfect knowledge of the terrain. 2. Has practically no support from the population, even if they are not hostile. 3. Has great difficulty in getting information on the movements and intentions of the guerrilla.

3. Has little long-distance communications equipment (at least at the outset), which leads to difficulties in coordinating operations. BUT 1. Chooses own terrain, is well adapted to it, can move quickly, and quite often disappears into it. 2. Has the support of the population (either spontaneous or through terror) to which the guerillas are closely tied. 3. Gets information on all army movements from the populace and sometimes (through agents infiltrated into the army) on its intentions as well.

Source: Trinquier, Roger. Modern Warfare, A French View of Counterinsurgency. Part 2. Accessed March 15, 2007. www.cgsc.army.mil/carl/resources/csi/trinquier/trinquier.asp#43

The long-term goal of the insurgency is seizure of state power so that it is replaced by a government founded in the ideology of the insurgency. This is achieved through actions designed to create disorder, terrorism, or guerilla warfare, and to instill doubt among the population that the government can provide for their safety. Assuming that the most important function of the state is to provide security for its population, the insurgent’s mission is to undermine, in the population’s view, the nation-state’s ability to perform its most basic responsibility. If the insurgency succeeds, it has undermined the legitimacy of the government, the population’s trust has shifted to the insurgency, and the insurgents are poised for the seizure of state power. The strategy to accomplish this goal is a political– military one.

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The Civilian-Military Divide Table 2.4 Characteristics of the Unconventional War Paradigm-Insurgency Nature

Actor Strategy Conduct of War Goal End State Target Battlefield Weapon

Violent clash of interests Continuation of politics Submission to one’s will Nonstate actors Political-military Civilians Disorder Replace political system State government, Economic Centers Undefined, Internal to a country Terrorism, guerilla warfare

Response: The Unconventional War Paradigm The response to an insurgency is a counterinsurgency. In 1985, a theorist of counterinsurgency, Roger Trinquier, used the term ‘‘modern war’’ not to refer to conventional war, as I did early in this chapter, but rather to refer to revolutionary war. This is because in revolutionary war the allegiance of the civilian population becomes the most vital objective of the whole struggle. The political nature of modern warfare is that it strikes the entire population of a country, the inhabitants of the large cities as well as those of the most remote rural districts.104 The military nature of modern warfare is that its basic weapon is terrorism, supported by a special organization.105 The key message Trinquier seeks to impress upon readers is that military tactics and hardware are all well and good, but they are quite useless if one has lost the confidence of the population among whom one is fighting.106

Characteristics of a Counterinsurgency In conventional war, either side can initiate the conflict; only one—the insurgent—can initiate a revolutionary war, for counterinsurgency is only an effect of insurgency. Furthermore, counterinsurgency cannot be defined except by reference to its cause.107 Counterinsurgency theorists agree on some general principles that a counterinsurgency strategy must possess. These include legitimacy as the main objective of the COIN, ensuring security of the population, COIN as a political–military effort, COIN as a protracted struggle, and defeat of the insurgency by understanding the environment through local intelligence operations. First, like an insurgency, legitimacy is the end state of a counterinsurgency. Governments rule through consent and coercion. The center of

The Security Environment

gravity is identical for the insurgency and the counterinsurgency—the population. Legitimacy constitutes the central strategic problem that is the hub of all power and movement on which virtually everything in the contemporary international environment depends. This umbrella concept focuses on the moral right of a government to govern.108 Second, in order to maintain the trust of the population, the government must be able to provide for its safety. ‘‘The population’s attitude in the middle stage of the war is dictated not so much by the relative popularity and merits of the opponents as by the more primitive concerns for safety.’’109 Both insurgents and counterinsurgents will be judged by the population based on who gives the most protection, who threatens the most, and who is most likely to win.110 The insurgency can promise the world without any accountability, whereas the counterinsurgent is judged on its actions, not its words.111 Third, the conduct of the counterinsurgency is a political–military effort. The focus of all civil and military plans and operations must be geared towards the center of gravity, the country’s people and their belief in and support of their government.112 Political–military or civil–military collaboration is the hallmark of the COIN because this relationship and the actions arising from it are crucial to maintaining the legitimacy of the government and the trust of the population. Fourth, intelligence operations that help detect terrorist insurgents for arrest and prosecution are the single most important practice to protect a population from threats to its security.113 Fifth, the counterinsurgency is a protracted conflict and it must make a long-term commitment. People will not support a government until they are convinced the counterinsurgency has the means, ability, stamina, and will to win.114 Protracted conflict does not favor security forces in a country. The insurgents need to merely survive; thus, guerilla warfare is a kind of attrition against the regime. For guerillas, exhausting or outlasting the enemy will produce victory.115 Sixth, the strategy for a counterinsurgency requires unified political, military, economic, and psychological aspects.116 It is political because the trust and loyalty of the population is at stake. It is military because the counterinsurgent needs to kill the enemy organization.117 It is accepted that the final stake of modern warfare is the control of the populace. The army should, therefore, make its main effort in those areas where the population is densest, that is, in the cities.118 Phases Following the phases of an insurgency described earlier, this discussion describes how the security forces in a COIN—the military and police— approach these phases.

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In Phase 1, there is increasing lawlessness of some element of the population in conflict with the government. Up until this point, the police handle the unrest. Civilian authorities can no longer cope with the situation and are forced to call for military assistance to restore law and order.119 In Phase 2, there is initiation of military action against the insurgent organization. For the military, it is a defensive action with the objective of reaching an offensive stance. During Phase 2, the military may be in charge at any point, then the police, then a security force. In anticipation of the fluidity of the situation, it is recommended that chain of command arrangements be in place.120 In Phase 3, the initiative passes to security forces of the government. From a counterinsurgent’s point of view, an insurgency can be divided into two periods: the ‘‘cold revolutionary war,’’ and the ‘‘hot revolutionary war.’’ In the cold period, the insurgent’s activity is, on the whole, legal and nonviolent. In the hot period, the insurgent’s activity becomes openly illegal and violent.121 Knowing when the transition occurs from cold to hot is a challenge. If an insurgency is known, in the cold period, the police would know that something is looming. In the cold period, four courses of action are open to the counterinsurgency:122 1. 2. 3. 4.

Act directly against the insurgent leaders. Act directly on the conditions that are propitious to an insurgency. Infiltrate the insurgent movement and try to make it ineffective. Build up or reinforce its political machine.

In practice, there have been two approaches to countering insurgencies: annihilation and obtaining the loyalty of the people.123 In the former approach, this means tracking down all terrorists, guerillas, and even the base, and killing them all. This can also be a vulnerability, in that the counterinsurgent cannot be as ruthless as the situation demands.124 There is only one means of defeating an insurgent people who will not surrender, and that is extermination. There is only one way to control a territory that harbors resistance, and that is to turn it into a desert. Where these means cannot, for whatever reason, be used, the war is lost.125 Employing the latter approach, appealing to the loyalty of the people, means isolating the insurgents by removing their support among the population.126 The logic is that once the insurgents are cut off from their support—money, recruits, other personnel, and intelligence—they can be coerced to surrender or destroyed by security forces with the help of the population.127

The Security Environment

Counterinsurgent Forces The political–military strategy is the hallmark of a COIN response. At its most fundamental level, there must be a civil–military understanding.128 ‘‘There is no purely military battlefield in counter-insurgency warfare.’’129 A civil–military understanding is needed because there is a difference of approach to conflict. The military is concerned about defeating the enemy quickly and decisively, and about protecting troops.130 Civil authorities, in contrast, are concerned with long-term settlement, based on the goodwill of the people.131 The pre-9/11 theorists recognized that a counterinsurgency has phases and in various phases the involvement of the police and the military is required. The first phase involves the police, in the second phase, the military become involved, and in the final phase, the counterinsurgency is a completely military operation. Summary of Characterization of Threat and Response In the conventional war paradigm, the nation-state is accustomed to other states being threats. They are external to the territorial boundaries of the state and are threatening state interests or populations abroad. The response is a political one, carried out by the national military outside of the nation-state. The most important function of the state is to provide security for its population, territory, and interests from external threats. Externally, the national military protects the country and conducts war. Internally, law-enforcement officials provide security. Internal conflict is not considered war.132 Ideology is not a consideration. An insurgency also poses a threat to a nation-state because its goal is to seize state power and replace it with a government reflecting its ideology. By developing a political–military strategy that employs civilians in Table 2.5 Characteristics of Unconventional War-Counterinsurgency Nature

Actor Strategy Conduct of War Goal End State Target Battlefield Weapon

Violent clash of interests Continuation of politics Submission to one’s will Nation-state Political-military Government security forces Order Status quo Civilian insurgents Undefined, Internal to a country Military arsenal

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The Civilian-Military Divide Table 2.6 Summary of the Characteristics of Threats and Responses Characteristics Nature

Actor

Conventional War Violent clash of interests Continuation of politics Submission to one’s will Nation-state

Conduct of war

By the military

Goal End state

Target

Defense of the state National security; Security of population, territory, interests Another state

Battlefield

Defined territory

Weapon

Military arsenal

Insurgency Same

Counterinsurgency Same

Nonstate

National, state, and local governments By the government’s security forces Order Status quo

By armed and unarmed civilians Disorder Replace political system

National government

Civilian insurgents and their base of support Undefined, internal to a country

Undefined, internal to a country Terrorism, guerilla Police and military warfare arsenals

unarmed and armed capacities, insurgents seek to undermine the legitimacy of the government by threatening the security of the population through acts of terrorism. A counterinsurgency is the response to an insurgency. The COIN relies upon a political–military strategy that ensures the security of the population through the use of the country’s security forces—the national military and local police forces. Moreover, a successful COIN requires a unity of effort in the community that considers the political, military, economic, and psychological aspects in developing a plan to undermine and eliminate the insurgency. Both are domestic operations. CONTEMPORARY CONDITIONS According to IR theory, states maintain and establish order in the international system, but what happens when state authority in dealing with

The Security Environment

new threats is questioned? This is the subject of this section. ‘‘Contemporary conditions’’ refers to the end of the Cold War and globalization because these events precipitated changes in the security environment that raise debates on the present and future role of states and other actors in governance and in the world order. The end of the Cold War left a power vacuum with the decline in the international presence of the United States and the USSR. This vacuum created a situation of failed and weak states133 that created instability. By the end of the Cold War, there was recognition that there is a prevalence of unconventional war over conventional war. Data supports a decline in interstate wars and a rise in internal wars since 1989, and some mark the beginning of the decline in 1945. ‘‘The incidence of war is greater now than it has been since the 17th century, but the level at which it is conducted is lower than anything seen so far in the 20th century.’’134 There are two data collections worth noting in assessing changes in war from conventional or interstate war to unconventional war. These are the Correlates of War project, and the Peace and Conflict series. Research based on these data-sets has concluded that unconventional wars predominate, although the approaches to this conclusion and the names for noninterstate wars vary. The Peace and Conflict Series, A Global Survey of Armed Conflicts, Self-Determination Movements, and Democracy, was published in 2001, 2003, and 2005. Located at the Center for International Development and Conflict Management (CIDCM) at the University of Maryland, the Peace and Conflict series is based on analyses of CIDCM’s data resources, including Armed Conflict and Intervention, International Crisis Behavior, Minorities at Risk, Polity IV, and State Failure project databases. In its latest report,135 CIDCM concluded that there is a decline in interstate wars and rise in intrastate or colonial wars, but that these rates of change are not increasing. The Correlates of War (COW) Project,136 founded in 1963, was run by political scientist J. David Singer, and historian Melvin Small. The retirement of Singer prompted the transfer of the project to Penn State under the leadership of Stuart A. Bremer in March 2001. As of January 2005, the project continues under Director Paul Diehl, and Associate Director D. Scott Bennett. The original and continuing goal of the project has been the systematic accumulation of scientific knowledge about war. The project offers data on the incidence and extent of interstate and extrasystemic war in the post-Napoleonic period. To do this scientifically, Singer and Small found they needed to operationally resolve a number of difficult issues such as what is a ‘‘state’’ and what precisely is a ‘‘war.’’137 Their original typology of war is that there are three types: interstate wars, extrastate wars, and intrastate wars. The COW project does not accept that there are new types of war, preferring to adhere to their typology, though it recognizes that the locus of war has changed and that nonstate actors are increasingly involved.

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Further complicating world affairs and the role of the state is globalization. There are different definitions and theories of globalization. I select the following definition: Globalization is the latest stage in a long accumulation of technological advances which have given human beings the ability to conduct their affairs across the world without reference to nationality, government authority, time of day, or physical environment.138 Globalization is not new, it has occurred previously with other technological advances, such as shipping, the railroad, and the telephone. Today’s globalization is different because the technological advances—the Internet and telecommunications—and the speed break down barriers resulting in increased human activity around the world, and increased and expanded communications among people. Heightened interactions blurs the lines between external and foreign and internal and domestic. Forces and flows of globalization (of information, images, capital) are the push–pull of the global–local dynamic. The tensions are characterized differently by different people: unifying and integrating oppose localizing and regionalizing,139 fragmegration,140 integration and fragmentation,141 and aggregation and disaggregation. Localization is a derivative of globalization.142 It is not new that global flows affect local environments and people. For example, the flutter of butterfly wings in Brazil creates a weather change in Chicago. It is not new that global flows may revitalize local environments. Anthropologists have seen this for a long time. For example, there is a phenomenon known as the ‘‘cargo cult,’’ which has two elements: the ‘‘cult’’ is the organized set of beliefs and practices connected to the supernatural, and the ‘‘cargo’’ is the material goods brought by sea or air. The ‘‘cargo cult’’ is a religious movement designed to gain material goods through local rituals. It is an example of how the global impacts the local—the local believed that their religious rituals were bringing in cargos brought by missionary messengers. When the cargo stopped, local leaders emerged. ‘‘Theory of revitalization’’ is the name given to this phenomenon.143 The flows and forces of globalization and localization transform the traditional notions of boundaries alluded to earlier, and create global spaces and ‘‘on-the-ground’’ spaces. A theme of globalization is contradiction. For example, globalizing forces eliminate borders and localizing forces form and strengthen borders. Globalization questions the value of borders; others wonder whether the territorial norm of integrity—that is, force will not be used to alter boundaries—applies when boundaries are shifting and disappearing.144 The forces and flows of globalization also emphasize the local. Globalization affects the shape of activities. Nation-states are vertical, hierarchical, territorially defined structures that allow communication at its apex. A globalized shape is a horizontal plane, and this is where communications occur. Globalized activities are horizontal. Communication is conducted by individuals, outside of government, without limits as to time of

The Security Environment

day or geography. The government is no longer the intermediary between the individual and the external. In practice, the threat to the state is no longer limited to a state; it includes nonstate actors. In the case of 9/11, the individuals were the suicide bombers. Images of their actions were communicated to the world via media outlets. Globalization affects the structure of power. Some believe the dynamic (global–local flows) creates a balancing act among three power structures— the state, the markets, and the individual.145 Others believe that power is alienated from ‘‘state space’’ and resides in cities.146 Still others argue that power resides in ‘‘spheres of authority’’ and ‘‘polities’’ that arise in the newly mapped political space.147 The actors interact directly and horizontally with the world and vice versa. The individual becomes a central actor in spreading a message, raising money from the global marketplace, purchasing weapons, and generating support from individuals and other organizations. It follows that globalization impacts governance. The place where the globalized horizontal activity meets the state’s vertical and hierarchical structure is a contemporary crisis of governance called political legitimacy. ‘‘Political legitimacy’’ can be defined as the alignment of the processes of democracy and political power. In other words, if you want something done, you know where to go. New relationships of power, administration, and political activity need to occur. With regard to the nation-state’s response, the state is challenged to reassess its relationships of power, administration, and political activity. Security is one area where the structure of power is examined. The nation-state, in this instance the United States, is getting pressure from above—by the global threat and by the international community fighting it—and from below—the U.S. public expects the government to do something to keep them safe and secure. This is the paradox for the state: The nation-state is being forced to change by the pressure; as long as the state is paralyzed, its legitimacy is threatened. So, although the role of the state is sometimes questioned in discussions on globalization, the state is at a critical juncture to shore up legitimacy—to rethink how processes of democracy and political power in the Constitution can be refashioned to respond to the threat. In this book, boundaries are important because I look at the rules inside the United States. The holding structure for the processes of democracy and political power is the Constitution of the United States. So, it is important to understand how this structure enables responses to a global threat. It is also important to understand how this structure accommodates a focus on the local spheres of activity. The democratic deficit is a condition that occurs when the people have a problem and nowhere to turn for an answer. Some suggest that terrorism arises in this vacuum. The end of the Cold War and globalization yielded what is known as the ‘‘new war’’ literature. This literature refers to a new form of war,

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sometimes called ‘‘new war,’’ ‘‘postmodern war,’’ ‘‘wars of the third kind,’’ and ‘‘people’s war.’’ ‘‘New war’’148 refers to a new form of organized violence that has a political nature and that blurs distinctions between war, crime, and human rights violations. The new war is a ‘‘mixture of war, crime and human rights violations, so the agents of cosmopolitan lawenforcement have to be a mixture of soldiers and policemen.’’149 ‘‘Postmodern war’’ addresses the impact of technology on war. ‘‘Wars of the third kind’’ refers to conflicts in rural Third World states.150 ‘‘People’s war’’ refers to the dissolution of the clear distinction between the state, the armed forces, and the society that is the hallmark of interstate war.151 Thus, there has been a de-institutionalization of war.152 Some believe that Clausewitz is no longer relevant as a way to think about and respond to violence that concerns ideologies and the nature of communities rather than state interests. New wars have several characteristics. First, there is ‘‘a blurring of distinctions between war (usually defined as violence between states or organized political groups for political motives), organized crime (violence undertaken by privately organized groups for private purposes, usually financial gain), and large scale violations of human rights (violence undertaken by states or politically organized groups against individuals.).153 Second, though new wars are local and often referred to as civil wars or low-intensity conflicts, they involve transnational connections. Therefore, the distinction between internal and external, between aggression (attacks from abroad) and repression (attacks from inside the country), or even between local and global, is difficult to sustain.154 Third, there is a blurring of public and private spheres of activity.155 Fourth, the latest revolution in military affairs is about social relations of warfare, not technology.156 Fifth, there are new goals with new wars, and these are claims to power based on a particular identity—be it national, clan, religious, or linguistic. The way this contrasts with the past is that past identities were linked to a state interest, e.g., nationalism or nation-building. This new goal relates to globalization because identity politics are local and global and transnational. For example, the influence of diaspora communities is enhanced by ease of travel and communication. Alienated groups provide money and techniques. Political mobilization occurs through electronic media.157 Sixth, new methods of warfare draw on guerilla warfare and counterinsurgency.158 New warfare avoids battles, is set on causing destabilization, and is aimed at capturing hearts and minds.159 Actors in the new war are not organized hierarchically; rather, they are paramilitary, local warlords, criminal gangs, police forces, mercenary groups, and regular armies. They are decentralized and use technology and other modern methods of communication.160 Moreover, they are financing the new war through a global war economy.161

The Security Environment

Holsti calls such conflicts ‘‘people’s war.’’ People’s war refers to the dissolution of the clear distinction between the state, the armed forces, and the society that is the hallmark of institutionalized war.162 Thus, there has been a de-institutionalization of war.163 ‘‘Wars today are less a problem of the relations between states than a problem within states.’’164 Legitimacy is a particularly acute problem. There are three sources of legitimacy (not necessarily of the state): popular sovereignty (civic state), religion, and natural community or ethnicity.165 In order to understand the decline in interstate wars and increase in internal wars since 1945, one must abandon IR theories and shift attention to the weak states.166 War arises primarily in states based on the latter two principles of legitimacy because they are exclusive, seeking to establish rule over single communities of believers or communities of blood, language and religion, whereas most states today are comprised of multiple communities. The contradiction between exclusive principles of legitimacy and the demographic and social constitution of most postcolonial and post-Soviet societies creates weak states and, ultimately, war.167 The end of the Cold War and globalization contributed to the new threat paradigm, the global threat. They also are impacting state authority and thus the state’s response to the threat. See Appendix A, ‘‘War Paradigms,’’ for a table summarizing the differences between conventional war, unconventional war, and irregular war. CONCLUSION OF CHAPTER 2 A global threat and an effective response pose a challenge to nationstates accustomed to threats from other nation-states. Yet, as this chapter discusses, nation-states are accustomed to nonstate threats too and have tailored their response. A global threat is different, though. It requires nationstates to think about a different kind of response. Nation-states must think about conducting war internally (a domestic military operation), developing a political–military strategy (not just military), and integrating the efforts of national, state, and local security forces (not just law-enforcement forces). It is my hope that this chapter set the context for this book. It discusses the present threat, reviews the existing paradigms for dealing with conventional and unconventional threats, offers an explanation of what is changed, and concludes with questions for advancing this topic. What is new is a global threat. What is not new is the enduring prize in all insurgencies and counterinsurgencies—the population’s trust that their government will keep them safe and secure. This is the legitimacy of the governing authority. What is new, and is also directly related to the legitimacy of the governing authority, is the situation of a nation-state troubled by a threat for which it cannot find a solution, a response to eliminate the threat.

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There is a ‘‘small wars battlespace.’’168 This means that the military is not the only actor in war, insurgency, and counterinsurgency. There is a low utility of purely military solutions. This means that resolution to a conflict will involve a unity of effort. ‘‘Purely military or kinetic solutions rarely resolve the underlying issues in civil or intrastate conflicts. Military power is often a foundation for success, but is rarely decisive by itself. As noted in the Marines’ seminal manual, ‘In small wars, caution must be exercised, and instead of striving to generate maximum power with forces available, the goal is to gain decisive results with the least application of force and the consequent minimum loss of life.’’’169 The 9/11 Commission recommends a political–military strategy to defeat the global threat. A political–military strategy requires a unity of effort to • attack terrorists and their organizations; • prevent the growth of Islamist terrorism; and • protect against and prepare for terrorist attacks.170

There is a new threat paradigm. There is a new response paradigm. What are the domestic arrangements to respond to this new threat? • What does U.S. law say about response? • Why did the United States respond the way that it did to 9/11?

3

U.S. Law The U.S. Constitution frames the discussion of whether domestic law would allow a domestic response that is a unity of effort among the country’s security forces. The U.S. Constitution is designed to diffuse government power in order prevent a concentration of power that threatens individual liberty. Accordingly, the allocation of power among different government organizations is the foundation of the U.S. Constitution. This chapter examines how three principles of the U.S. Constitution—the separation of powers, federalism, and separation of the civilian and military sectors—would impact unity of effort by the country’s security forces in prevention and preparedness activities to the global threat of Al Qaeda. This chapter concludes by looking at the domestic planning arrangements for the country’s security, organized along the lines of these principles. THE U.S. CONSTITUTION Threats It is well established that the national government’s first function is security.1 ‘‘It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.’’2 It has been said that, ‘‘we have a fighting constitution.’’3 The first sentence of the Preamble to the U.S. Constitution provides that ‘‘We the People of the United States, in Order to . . . insure domestic tranquility, provide for the common

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defense . . . do ordain and establish this Constitution for the United States of America.’’ Although the Preamble is a not a source of power for any department of the federal government,4 the U.S. Supreme Court refers to it as evidence of the scope and purpose of the Constitution.5 The Constitution distinguishes between two kinds of threats to the security of the country. Article IV, Section 4 states: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.

This provision views the threat as an invasion by a foreign power. The response of the national government is to protect the states from invasion. It also views domestic violence as a threat to the constituent states, the response to which would be managed by the states;6 only at their request would the national government become involved. Thus, the stage is set for how the U.S. Constitution allows the governments of the United States to organize and structure their response to threats. The separation of powers principle is instructive on the issue of the government’s response to an external or foreign threat because it engages national war powers and the conduct of war by the national military. The federalism principle is useful on the government’s response to an internal or domestic threat because it engages the state and local government police powers, primarily in crime prevention, and the exercise of these powers by state and local law enforcement. The principle of the separation of civilian and military sectors guides consideration on the interaction of the national military, state militias, and National Guard within the United States under a variety of crisis circumstances ranging from attacks on the United States to domestic violence, emergencies, natural disasters, and national security events. How was 9/11 characterized? How did the United States respond? Most states have domestic arrangements to deal with security threats. In the United States, the responses are war, declaring a national emergency, and crime-prevention activities. A global threat challenges each of these responses because they were not designed with a global threat in mind. In the United States, there has been debate and perhaps confusion over whether to prosecute 9/11 as crimes or as war. President Bush, who had responsibility to integrate all aspects of national security policy—domestic, foreign, military, intelligence, and economic—was faced with a decision to choose or pursue one of two national security paradigms. The first was to view the events as national security breaches that were matters for criminal law and which depended upon law enforcement. This was the path pursued in the prosecution of the 1993 World Trade Center bombings.7 The second

U.S. Law

was to proceed to protect national security as an aspect of the war powers, which depend largely on military and diplomatic power. President Bush chose the second paradigm, the war approach, in his response to the attacks of 9/11. In his speeches and policy statements he referred to the ‘‘war on terror.’’ On September 18, 2001, Congress passed the Authorization for Use of Military Force Joint Resolution,8 pursuant to the War Powers Resolution.9 President Bush also declared a national emergency, which set into motion a variety of activities permitted within the United States. On September 14, 2001, he issued Proclamation 7463, ‘‘Declaration of National Emergency by Reason of Certain Terrorist Attacks.’’10 The National Emergency Act authorizes the declaration of a national emergency based only on ‘‘any unusual and extraordinary threat, which has as its source in whole or in substantial part outside the United States, to the national security, foreign policy, or the economy of the United States’’11 On September 23, 2001, President Bush issued EO 13224 declaring a national emergency by reason of the September 11, 2001 attacks by terrorists.12 Separation of Powers The separation of powers principle concerns the powers of the national government. It is well established that the war powers reside in the national government.13 They are divided among the three branches of the national government: the legislative, executive, and judicial. The constituent states have no war powers. In fact, they are denied power in this area. Article I, Section 10, cl. 3 states: No State shall, without the consent of Congress . . . keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Article I concerns the legislative branch, Congress. Generally, the express or enumerated war powers of the Congress are the power to declare war and to maintain the armed forces. In addition, the Spending Clause of Congress’s enumerated powers gives Congress the power to ‘‘provide for the common defense and general welfare of the United States’’ and several other express powers related to war.14 The power to declare war and to maintain the armed forces includes the implied power to prepare for war through the Necessary and Proper Clause, which states that Congress has the power ‘‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.’’15 The placement of the clause among the powers of Congress, rather than in the limits on Congress, has led the Court to rely upon this

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clause and hold that the express powers of Congress are to be read broadly in order to accomplish the goal of making the government work.16 The most significant laws Congress has made in the area of the war powers are the War Powers Resolution, the National Emergencies Act, and the National Security Act of 1947. In the area of declaring war, the Congress passed the War Powers Resolution17 to restrict presidential commitment of armed forces absent congressional authorization. Section 1541 states that the constitutional powers of the President as Commander-in-Chief to introduce U.S. Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. Whether this provision is a legally binding definition of presidential authority to deploy armed forces is debated to this day.18 Although the power to declare war has not changed, the nature of war has been changing for some time. As such, so has the behavior of states in seeking authorization for war. Existing constitutional provisions require Congress to declare war, which the United States did for five wars prior to its entry into the UN.19 Since then, states, including the United States, relying on the UN Charter, are unlikely to declare war in a formal way, and may or may not authorize the use of military force abroad. Congress’s concern that the executive branch would expand its power during wartime at its expense led to the enactment of the National Emergency Act. According to this law, Congress will authorize the declaration of a national emergency based only on ‘‘any unusual and extraordinary threat, which has as its source in whole or in substantial part outside the United States, to the national security, foreign policy, or the economy of the United States.’’20 To end the practice of declaring national emergencies for an indefinite duration, Congress provided that any emergency not otherwise terminated would expire one year after its declaration unless the President published in the Federal Register and transmitted to Congress a notice that the emergency would remain in effect.21 This provision is designed to ensure that there is no permanent shift in the balance of power at the national level. One of the most important acts of Congress pursuant to its war powers was the passage of the National Security Act of 1947,22 the principal federal statute that organizes the national security apparatus of the United States. Responsibility is divided among executive branch officials who report to the President. The Act’s ‘‘Declaration of Policy’’ states: It is the intent of Congress to provide a comprehensive program for the future security of the United States; to provide for the establishment of

U.S. Law integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security; to provide a Department of Defense, including the three military Departments of the Army, the Navy (including naval aviation and the U.S. Marine Corps), and the Air Force under the direction, authority, and control of the Secretary of Defense; to provide that each military department shall be separately organized under its own Secretary and shall function under the direction, authority, and control of the Secretary of Defense; to provide for their unified direction under civilian control of the Secretary of Defense . . . to provide for the establishment of unified or specified combatant commands, and a clear and direct line of command to such commands . . . to provide for the unified strategic direction of the combatant forces, for their operation under unified command, and for their integration into an efficient team of land, naval, and air forces.23

This policy statement makes clear that providing for the national security of the United States is a military effort. It also makes clear that the military effort is a unified one that encompasses air, land, and sea, and that the military is subject to civilian control of the Secretary of Defense. Article II of the Constitution concerns the executive powers of the national government, the President. The President’s Article II war powers are the Oath of Office Clause, the Commander-in-Chief Clause, and the Appointments Clause. When the President is sworn in, he makes the following oath or affirmation. ‘‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’’24 The President’s Commander-in-Chief powers include that ‘‘the President shall be the Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual services of the United States.’’25 As noted earlier, war is considered an activity that occurs outside the United States, and it is in the context of foreign affairs that the President’s powers have developed. In this area, the President is considered to have constitutional and extraconstitutional powers. The Appointments Clause is the primary source of the President’s foreign affairs powers. It states that: He shall have Power, by and with the Advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public ministers and consuls, Judges of the supreme court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law.26

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Although Congress and the President share powers in foreign affairs, the President is deemed to have primacy.27 The President’s extraconstitutional powers derive from the United States’ separation from Great Britain when external sovereignty passed directly from the crown to the Union of States since foreign affairs powers are the ‘‘necessary concomitants of nationality.’’28 This understanding has not been rejected by the courts; rather, it has been embraced.29 In addition to the express powers, the President has implied powers. The courts have held that the President is the ‘‘sole organ of the nation’’ in its foreign relations.30 In general, the President is at the center of national security policy, notwithstanding delegation to executive departments and agencies.31 The President’s role at the center of national security policy is not disputed. There are limits on the President’s power as Commander-in-Chief and voice of the country in foreign affairs. The exercise of the President’s foreign affairs power on U.S. soil was last tested and resolved by the Supreme Court during the Korean War when President Truman seized steel mills in Youngstown, PA, an action the Court declared unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer.32 President Truman relied on the Oath of Office Clause ‘‘to preserve, protect, and defend the Constitution.’’ Below is a description of the President’s authority as presented by the Supreme Court: 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate [as in United States v. Curtis Wright]. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law [citing President Lincoln’s suspension of the writ of habeas corpus]. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject [citing President F. Roosevelt’s removal

U.S. Law of an FTC commissioner]. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The President’s exercise of his Article II powers as they relate to war on U.S. soil is limited by Congress and by the Supreme Court. Yet, the President has acted domestically in emergencies. While this issue will be discussed in greater detail in the Federalism section, it is worth noting that the Constitution entrusts the ‘‘power [to] the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten public safety.’’33 Article III of the Constitution concerns the powers of the judicial branch of the national government. The judicial branch generally is not involved in war issues because of the political question doctrine.34 ‘‘It is not within the province of the Courts to inquire into the policy underlying action taken by the ‘political departments’—Congress and the President— in the exercise of their conceded powers.’’ This commonplace maxim is, however, sometimes given an enlarged application, so as to embrace questions as to the existence of facts and even questions of law, which the court would normally regard as falling within its jurisdiction. Such questions are termed ‘‘political questions,’’ and are especially common in the field of foreign relations.’’35 Justice Jackson, in Chicago v. Waterman, declared: The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if the courts could require full disclosure, the very nature of executive decisions as to foreign policy is political not judicial. Such decisions are wholly confided by our Constitution on the political departments of the government Executive and Legislative. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has [sic] long been held to belong to the domain of political power not subject to judicial intrusion or inquiry.36

Whether war exists in its legal sense at any given time is a matter to be determined by the political departments of the government.37 The

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determination of the existence of a state of war by the political departments of the government is conclusive upon the courts,38 and of this determination the courts must take judicial notice.39 Generally, though, the federal judiciary does not get involved in national security cases. The Constitution, as interpreted, limits judicial review. Since the Constitution has given the President and the Congress wide authority and discretion, it is not for the court to sit in review and judgment.40 The factors that make a question political and inappropriate for judicial decision were taken up by Justice Brennan in Baker v. Carr.41 He ruled that a case involving ‘‘a purely legal question of statutory interpretation’’ is not made a political question simply by its significant political and foreign relations overtones.42 Although courts are not central in national security issues—leaving that to the political branches—they are central in criminal justice where there can be national security consequences based on the subject of jurisdiction. For example, the courts are active in intelligence cases because they implicate the Fourth Amendment and questions about warrants executed domestically. Prior to the passage of the Foreign Intelligence Surveillance Act of 1978 (FISA), the U.S. Supreme Court held that the requirements of the Fourth Amendment applied equally to electronic surveillance and to physical searches.43 The Court did not address whether such requirements apply to issues of national security. In 1972, the Court took up the issue again and held that court approval was required in order for the domestic surveillance to satisfy the Fourth Amendment. Justice Powell wrote that the decision did not address the issue that ‘‘may be involved with respect to activities of foreign powers’’44 These pre-FISA cases and the Foreign Intelligence Surveillance Act of 1978 will be looked at more closely in chapter 5.

Armed Forces of the United States The Armed Forces of the United States are the Services—Army, Navy, Marine Corps, Air Force, and, when required, Coast Guard (CG), U.S. Special Operations Command, combatant commands45 and defense agencies46 in support of the combatant commands. These entities constitute the U.S. military. The chain of command for the U.S. Armed Forces is as follows: the Commander-in-Chief, the Secretary of Defense, and the secretaries of the military departments. Each of those people is a civilian. The Chairman of the Joint Chiefs of Staff, who is not in the chain of command, and the respective Chiefs of Staff are military personnel. Their activities—in preparation for and prevention of war and in conduct of war—are guided by the U.S. Constitution, Title 10 of the U.S. Code, and the Department of Defense Directive (DODD) 5100.1.

U.S. Law

The Organization and Structure of the Armed Forces There are three military departments in the DOD: the Departments of the Army, Navy, and Air Force.47 The military departments are organized identically into three areas: • A civilian secretary who reports to the Secretary of Defense. These include the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force. • The respective military branch staff who reports to the respective chief of staff of that service who reports to the Chairman of the JCS. These include the Army Chief of Staff, the Air Force Chief of Staff, the Chief of Naval Operations, and the Commandant of the Marine Corps. • The respective armed forces themselves. These include the U.S. Army, the U.S. Navy, and the U.S. Air Force.

The Army, within the Department of the Army, includes land combat and service forces and any organic aviation, space forces, and water transport. The Army is responsible for the preparation of land forces for war and military operations short of war and for expansion of peacetime components of the Army to meet the needs of war.48 The Navy, within the Department of the Navy, includes naval combat and service forces, such aviation as may be organic therein, the Marine Corps, and the Coast Guard when operating as a service of the Department of the Navy.49 The Navy and the Marine Corps are responsible for the preparation and prosecution for war and military operations short of war and for the expansion of peacetime components of the Navy to meet the needs of war.50 The Air Force, within the Department of the Air Force, includes aviation and space forces, both combat and service. The Air Force is responsible for the preparation of the air and space forces for war and military operations short of war and for the expansion of peacetime components of the Air Force to meet the needs of war.51 The President, with the advice of the Chairman of the Joint Chiefs of Staff and through the Secretary of Defense, establishes the unified combatant commands, specified combatant commands, and the force structure, among other duties.52 Following 9/11, the President revised the Unified Command Plan and created the NORTHCOM53 to deter, prevent, and defeat aggression aimed at the United States.54 NORTHCOM is responsible for the U.S. military’s homeland defense mission. The area of responsibility (AOR)55 for NORTHCOM is the United States. Its responsibilities are homeland defense and assisting civil authorities in accordance with U.S. law. NORTHCOM has few permanently assigned forces.56

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Examples of some of NORTHCOM’s diverse activities include: • coordinating aerial surveillance with the FBI to detect the Washington, D.C. sniper;57 • coordinating DOD assets in initial rescue and recovery in the aftermath of Hurricane Katrina, including Coast Guard and National Guard helicopter rescue operations, Marines on the ground rescuing people in their watercraft, paratroopers from the 82nd Airborne Division, the Air Force and the Navy ships offshore; • working with civil authorities, the Federal Emergency Management Agency and DHS in planning the restoration and reconstruction of the greater New Orleans area;58 • drug interdiction; • firefighting; • space shuttle landing and recovery; • with NORAD, providing Super Bowl, 2004 security to ensure the best possible situational awareness.59 and • security for the G-8 Summit meetings near Savannah, GA.60

Although the Chairman of the JCS is not technically considered part of the Armed Forces, the Chairman of the JCS is the principal military adviser to the President, the National Security Council, and the Secretary of Defense.61 The Chairman of the JCS recommends any changes to mission and responsibilities to the President through the Secretary of Defense.62 In addition, any communication by the President or the Secretary of Defense may go through the chairman,63 who is the spokesperson for the combatant commands.64 The Joint Chiefs of Staff are the Chiefs of the Military Services. Though the JCS can trace its roots to the National Security Act of 1947, it had been operating informally since 1942 to meet immediate demands of wartime planning.65 In the 1940s it consisted of four members—the Chief of Naval Operations, the Army Ground Forces Chief of Staff, the Army Air Forces Chief of Staff, and a nonvoting chief of staff to the President.66 It ‘‘became the primary agency for coordination and strategic direction of the Army and Navy,’’ but notably had no role in determining military budgets.67 Conclusion of Separation of Powers The Constitution bifurcates the threat to the security of the country as either external and foreign or internal and domestic. The Constitution does not contemplate that the threat could be both simultaneously. The response to the threat follows this bifurcation. The national government is responsible for protecting the country from external threats by foreign entities. War

U.S. Law

is conducted by the military. State and local governments are expressly prohibited from participating in the war response. The Constitution does not contemplate that the appropriate response would include all levels of government and their respective security forces. This does not mean U.S. laws are blind to instances when a foreign threat could be on U.S. soil. Congress recognized this possibility with the passage of the National Emergency Act and the Foreign Intelligence Surveillance Act of 1978. President Truman acknowledged that war could have domestic consequences and tested his power, only to be reined in by the U.S. Supreme Court. No doubt, there are other instances of the President testing war powers on domestic soil. The notable observation is that activities and responses related to foreign threats all happen at the national level as the law prescribes. FEDERALISM Federalism concerns the allocation of powers between the national government and the state governments. The discussion of this principle is relevant because the U.S. constitutional system divides responsibility for responding to threats between two levels of government: the national government for war and the state governments for domestic violence. As this section explains, there is overlap by the national government into the states’ sphere. The Police Powers There are two things to be known about federalism. First, there is an assumption that the states have original power that predates the Constitution,68 referred to as the ‘‘police powers.’’ The states either retained police powers or surrendered them to the national government at the time the U.S. Constitution was ratified. Those powers retained are referred to as the ‘‘reserved powers of the states,’’ and they are contained in the 10th Amendment. Second, the state governments and the national government share police powers. They usually reside in the state legislatures and with Table 3.1 Summary of Separation of Powers Threat is foreign and external War is national government activity War power is the power to go and conduct war, the power to use force (it is not about governing) War power is about protecting the sovereignty of the country Conduct of war is by the military

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Congress, through the Necessary and Proper Clause and the Commerce Clause. By delegation by the legislature, the police power may be exercised by an executive department.69 The state governments and the national government have wrestled with each other since the founding of the country. The national government uses its spending power to obtain state government cooperation when the Congress might not otherwise have authority to act. The police power is said to be the power to govern; it is the inherent, reserved power of the state to subject individual rights to reasonable regulation in the interests of the general welfare.70 The state has the sovereign right to protect its citizens and has wide discretion to exercise its police power for this purpose. The existence of the police power imposes on the state the duty to take adequate steps to protect the lives of its residents.71 The police power refers to a power and function of government, a system of rules, and an administrative organization and force.72 Some courts have said that the police power sums up the power of the government: all other powers are only incidental or ancillary to the execution of the police power which is the full, final power involved in the administration of the law as a means to the attainment of practical justice.73 The 10th Amendment The 10th Amendment states that, ‘‘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.’’ The police powers are considered the original power of the states and, therefore, states need no specific grant of authority in the Constitution to legislate with respect to matters in the scope of the police power.74 Therefore, the police power is an inherent power of the states.75 Attempts have been made to define the police power, but the U.S. Supreme Court has said that any definition of the police power is essentially the product of legislative determinations ‘‘addressed to the purposes of government, purposes neither abstractly not historically capable of complete definition.’’76 Nonetheless, some definitions will be provided to show the breadth and scope of this power. There are two concepts in the police power. First, the welfare of the people is the highest law.77 The police power allows the state to legislate on the health, morals, and well-being of its citizens. Regulating social interests is the undisputed field of the police power, in which state control is universally regarded as legitimate. These social interests are peace and security from crime, public safety and health, public order and comfort, and public morals.78 The second concept in the police power allows the state to impose restraints upon liberty and property in the interest of peace, safety, health, order, and morals. The police power has also been described as the ‘‘law of

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necessity’’79 and coextensive with the necessities of the case and the safeguards of public interest.80 So, the police power can both promote the public welfare and do this by restraint and compulsion.81 A particular field of the police power is criminal law. Among those who exercise the police power are the police. Since the beginning of the country, the police have been considered ‘‘internal police.’’82 As the revolutionariesturned-governors proceeded to run their new country, they had to remind the new citizens of their duty of obedience.83 The legislature was passing policing laws, the courts were administering them, and the executive branch was institutionalizing the function using the names ‘‘police departments’’ and ‘‘police officers.’’84 The police power and criminal law go hand in hand. Limits on the 10th Amendment The judicial branch is the final arbiter of the limitations applicable to the police power.85 Generally, the legislative determination regarding the necessity for the police regulation is conclusive in the courts.86 However, there are limits. A state law or regulation enacted pursuant to an exercise of the states’ police power cannot ‘‘invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has vested in the national government, or deprive a citizen of rights guaranteed him or her by the Federal Constitution.’’87 If it does, then the law or regulation is struck down. The exercise of the police power by Congress emanates from the Necessary and Proper Clause, the Commerce Clause, and the 14th Amendment where federal interest is overriding and the need for state compliance is demonstrable.88 The principal checks on the states’ power through the Congress are the Supremacy Clause, the Commerce Clause, and the 14th Amendment. Treaties and federal statutes override state police regulations89 pursuant to the Supremacy Clause.90 The result is that the state police power can neither embrace a subject confided exclusively to Congress by the Constitution,91 nor can it defeat or impair a statute passed by Congress in pursuance of the powers granted to it.92 If Congress intends to occupy a field to preclude state action, the Supremacy Clause makes clear that federal scheme will prevail. If the state law ‘‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’’93 under the Supremacy Clause, the state law is preempted. The 14th Amendment94 provides that a legislature cannot impose rules that are on their face unreasonable, arbitrary, discriminatory, or confiscatory.95 The reasonableness standard inquires whether the restriction imposed on the rights of the individual, and secured by the Bill of Rights, is unreasonable.96 The requirement of reasonableness is a manifestation of the due process requirement, and an unreasonable exercise of the police power results in deprivation of property without due process.97 The

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appropriateness-of-means standard requires that the law, which is an interference, has some reasonable relation to public welfare98 or public health.99 The Commerce Clause states that the Congress has the power100 ‘‘To regulate Commerce with foreign Nations, and among the several states and with Indian Tribes.’’ The states cannot interfere with interstate commerce. The courts have limited the exercise of the police power by the states and the national government. If a law or regulation interferes with an individual right, then the use of such power must bear a substantial relationship to a legitimate government interest, and must not be unreasonable or arbitrary.101 Laws that impose restraints on personal liberty, in the absence of some public necessity, cannot be sustained.102 The police power of a state generally may not be projected beyond its territorial boundaries.103 In addition, the challenged regulation or law must meet tests of reasonableness and appropriateness of the means.104 The National Government’s Police Power The most active area for Congress vis- a-vis the states is the exercise of the Commerce Clause power. Two cases set up the debate on whether and to what degree the national government can regulate the states—the National League of Cities v. Usery105 (NLC case) and Garcia v. San Antonio Metropolitan Transit Authority106 (Garcia case). At issue in both cases was whether a federal law regulating wages and hours paid by a state government to its employees was constitutional. In the NLC case, the statute was held unconstitutional because ‘‘the [federal provisions] operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted to Congress by Art. I, Section 8, cl. 3.’’107 Moreover, the Court’s opinion stated that a ‘‘State is not merely a factor in the ‘shifting economic arrangements’ of the private sector of the economy, but is itself a coordinating element in the system established by the Framers for governing our Federal Union.’’108 Nine years later, the Garcia case reversed the NLC case decision. The majority decided that ‘‘the principal and basic limit on [federal power] is that inherent to all congressional action—the built-in restraints that our system provides through state participation in federal government action. The political process ensures that laws that unduly burden the states will not be promulgated.’’109 In other words, integral functions or operations of state government are trumped by the state’s participation in national political processes. The minority dissenters in the Garcia case began to make a comeback in 1991 in Gregory v. Ashcroft110 when the Court held that a provision in the Missouri Constitution mandating retirement of judges at age 70 did not violate the Age Discrimination Act of 1967. Justice O’Connor, writing for the court, stated that, ‘‘our Constitution establishes a system of dual

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sovereignty between the States and the Federal Government.’’111 She continued, ‘‘we beg[a]n with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal government, subject only to the limitations imposed by the Supremacy Clause.’’ She described the constitutional scheme of dual sovereigns in this way: The people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence . . . Without the States in union, there could be no such political body as the United States. Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.112

The Court affirmed its respect for state prerogatives in New York v. United States.113 In that case, a federal statute, the Low-Level Radioactive Waste Policy Amendments Act of 1985, contained a requirement compelling states to take a certain action—taking title to waste not subject to a regional compact. Acknowledging that the Congress could constitutionally use its spending power or its own direct regulatory authority to preempt state law, the Court declared that Congress could not ‘‘commandeer’’ the states. ‘‘While Congress has substantial powers to govern the nation directly, including areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’s instructions.’’114 The rationale for the invalidity of the provision was that the provision took away political accountability. The Court held that when the federal government requires states to regulate, state officials bear the wrath of the citizenry, yet the federal officials who designed the offending regulation remain ‘‘insulated from the electoral ramifications of their decision.’’115 Several cases have tested the balance of state and national police power in criminal law. In United States v. Lopez,116 the Court invalidated the Gun Free School Zones Act of 1990, which was enacted pursuant to Congress’s Commerce Clause power. Chief Justice Rehnquist, writing for the majority, stated that, ‘‘the possession of a gun in a local school zone is in no sense economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.’’117 Two years later in Printz v. United States,118 the Court invalidated certain provisions of the Brady Handgun Violence Protection Act, which would have ‘‘commandeered’’ state officials by requiring them to do background checks in a period

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between the passage of the Act and the implementation of a national ‘‘instant background check system.’’ Justice Scalia, writing for the court, emphasized that the states ‘‘retained ‘a residuary and inviolable sovereignty’’’ that is both ‘‘reflected’’ and ‘‘implicit’’ in the text and ‘‘rendered express’’ by the 10th Amendment.119 The structure of the Constitution protects liberty and protects against tyranny. ‘‘The power of the federal government would be augmented immeasurably if it were able to impress into its service—at no cost to itself—the police officers of the 50 states.’’120 In 2000, in United States v. Morrison,121 the Court struck down a federal statute, the Violence Against Women Act of 1994, which created a private cause of action in federal court for victims of violent crimes motivated by gender. The Court held that ‘‘gender-motivated crimes are not, in any sense of the phrase, economic activity.’’122 As such, they lay beyond the reach of Congress’s power to regulate commerce.123 Chief Justice Rehnquist emphasized that the ‘‘Constitution requires a distinction between what is truly national and what is truly local.’’124 He went on to say that ‘‘the regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been a province of the States.’’125 To hold otherwise would be to suggest that Congress could regulate virtually any crime, a prospect that would ‘‘undermine [a] central premise of our constitutional system.’’126 In Gonzalez v. Raich in 2005, the U.S. Supreme Court held the supremacy of federal law enforcement power, contained in the Controlled Substances Act, by using the Commerce Clause despite contrary state legislation. By using the Commerce Clause, the Court held that Congress may ban the use of marijuana even where states approve its use for medicinal purposes. Stevens’s opinion for the Court in Raich said that Lopez and Morrison do not apply, since marijuana is a popular part of commerce, and that the Commerce Clause applies whether the commerce is legal or not.

Police Power and Threats A variety of threats can face state and local governments and, in general, their management is the jurisdiction of state and local governments. State civil defense acts do not usurp the war powers of the federal government under the U.S. Constitution, Art. 1, Sec. 8, Cl. 10, but rather constitute a valid exercise of the police power of the state.127 However, there are instances when the states may ask for national government assistance from civil authorities or military authorities of the national government; federal statutes define these circumstances. The variety of domestic threats and responses fall under the umbrella term ‘‘emergency preparedness.’’ The Federal Emergency Management Agency (FEMA), in the Department of Homeland Security,128 coordinates civil defense and civil emergency

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functions of the national government129 and national security resources preparedness.130 The U.S. Department of Justice is the lead federal agency for civil disturbances, and the U.S. Department of Defense is the lead federal agency for military attacks. Emergency Preparedness As stated earlier, the U.S. Constitution divides threats into two groups: external or foreign threats and internal or domestic threats. Responses to internal and domestic threats fall under the umbrella of emergency preparedness. Emergency preparedness planning activities divide threats into civil emergencies, such as natural disasters and accidents, and civil defense emergencies, such as military threats. In general, in either instance, the state and local governments have primary jurisdiction. As a general rule, emergencies are managed at the most local level possible, utilizing mutual aid agreements with adjacent jurisdictions. Civil Emergency The Robert T. Stafford Disaster Relief and Emergency Assistance Act131 (Stafford Act) is the primary legal authority for federal participation in domestic disaster relief and is the framework for the characterization of and response to threats. It is contained in Title 42, Public Welfare, of the U.S. Code. ‘‘Civil emergency’’ means any accidental, natural, man-caused, or wartime emergency or threat thereof, which causes or may cause substantial injury or harm to the population or substantial damage to or loss of property.132 States Requesting Federal Law-Enforcement Assistance State governments may ask the U.S. Attorney General for federal lawenforcement assistance133 in a ‘‘law-enforcement emergency.’’ A lawenforcement emergency means ‘‘an uncommon situation which requires law enforcement, which is or threatens to become of serious and endemic proportions and with respect to which state and local resources are inadequate to protect the lives and property of citizens or to enforce criminal law, except that it does not include’’ crowd control activities, and enforcement of laws in connection with political conventions or sports events.134 One of the factors in considering the request is ‘‘the need to avoid unnecessary federal involvement and interference in matters of state and local concern.’’135 In these instances, the law expressly states that the U.S. Attorney General is not authorized to exercise any direction, supervision, or control over any police force or other criminal justice agency of the applicant.136

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Another type of threat is an ‘‘emergency situation involving a biological or chemical weapon of mass destruction.’’ In this instance, the U.S. Attorney General may request DOD assistance.137 States Requesting Presidential Assistance with Civil Authorities Governors may also ask the President to declare a major disaster or emergency.138 A major disaster139 is a natural disaster, and an emergency140 is an event that is beyond the capability of the state or local government to handle and for which federal assistance has been requested by the governor. The federal assistance is to be in support of the state and local governments.141 The President can declare an emergency, absent any request from a governor when ‘‘he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority.’’142 Such a situation would be when an emergency or disaster occurs on federal property or to a federal asset, for example, the bombing of the Murrah Building in Oklahoma City, OK, in 1995, or the explosion of Space Shuttle Columbia in 2003. If the emergency is terrorist related or if it is declared an ‘‘Incident of National Significance,’’ the Secretary of Homeland Security will initiate the National Response Plan (NRP). ‘‘Incidents of National Significance’’ are ‘‘high-impact events that require an extensive and well-coordinated multiagency response to save lives, minimize damage, and provide the basis for long-term community and economic recovery.’’ FEMA is responsible for declaring an event an ‘‘Incident of National Significance.’’ Under the NRP, the involvement of federal resources will be made available, integrating with the local, county, state, or tribal entities. Management will continue to be handled at the lowest possible level utilizing the National Incident Management System (NIMS).

States Requesting Presidential Assistance with Military Authorities There are several instances in which governors may also request national military assistance from the President. The first instance is insurrection.143 In the second instance, the President, on his own initiative, may federalize state militias and call in the national military to enforce federal authority, laws, or to suppress a rebellion.144 Finally, the President may use the national military in insurrection, domestic violence, or unlawful

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combination or conspiracy if these events are hindering the execution of laws of the state and the United States.145 Civil Defense Emergency ‘‘Civil defense’’ is a term that arose during the Cold War period and referred to the nonmilitary effort to prepare for a military attack. Until 9/11, the term was fast becoming obsolete. Since 9/11, there is renewed interest. The Federal Civil Defense Act of 1950 provided national support to state and local governments for catastrophic and hazardous emergencies. This Act was repealed in 1994 and its provisions are now administered under the laws governing FEMA. A civil defense emergency is now called a ‘‘national security emergency.’’ EO 12566 defines a national security emergency146 as ‘‘any occurrence, including natural disaster, military attack, technological emergency, or other emergency, that seriously degrades or seriously threatens the national security of the United States.’’147 It does not include ‘‘those natural disasters, technological emergencies, or other emergencies, the alleviation of which is normally the responsibility of individuals, the private sector, volunteer organizations, state and local governments, and federal departments and agencies unless such situations also constitute a national security emergency.’’148 Natural disasters include severe weather, fires, and earthquakes. Special Events include such activities as the Olympics, summits, and the World’s Fair. Manmade disasters include Chemical, Biological, Radiological, Nuclear, and Explosive (CBRNE) consequence management, terrorist threats or attacks, and oil spills. Limits on Military Assistance to Law Enforcement—The Posse Comitatus Act There are two broad limits on military assistance to law enforcement. The first is that the support by military of civilian law-enforcement personnel cannot impair military preparedness of the United States.149 The second is the Posse Comitatus Act of 1878150 (PCA), a federal statute that makes it a crime for the military to be involved in law-enforcement activities. The purpose of the PCA is to meet a danger inherent in the Armed Forces of United States—that is, coercive capabilities due to the primary purpose of military personnel who are trained to operate under circumstances where protection of constitutional freedoms cannot receive consideration needed in order to assure their preservation.151 The Posse Comitatus Act states: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the

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The Civilian-Military Divide Army or the Air Force152 as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000153 or imprisoned not more than two years, or both.

Military involvement in law-enforcement activities is restricted, but not totally prohibited, by the PCA.154 The Constitution and federal statutes establish six exceptions to which the Posse Comitatus Act prohibition does not apply.155 In other words, these are instances when the military and law enforcement can work together. The two constitutional exceptions are based upon the inherent legal right of the U.S. Government to ensure the preservation of public order and the carrying out of governmental operations within its territorial limits, by force if necessary.156 The constitutional exceptions are for emergencies157 and for protection of federal property.158 The statutory exceptions to PCA are insurrection, failure to enforce federal authority, interference with state or federal law, and permissible activities. In all these instances, presidential action, including the issuance of a proclamation calling upon insurgents to disperse and retire peaceably within a limited time, is required.159 In these instances, the President may federalize the state defense forces to deal with internal problems.160 This is in addition to the President federalizing the National Guard. A purpose of PCA is to preclude direct active use of federal troops in aid of the execution of civil laws. The feared use of the Army or Air Force prohibited by PCA is that which is regulatory, proscriptive, or compulsory in nature, and causes the citizens to be presently or proscriptively subject to regulations, proscriptions, or compulsions imposed by military authority.161 Prohibited active or ‘‘direct’’ actions include arrests, seizures of evidence, searches of people or buildings, crime investigations, interviewing witnesses, and pursuing escaped prisoners.162 See Appendix B, ‘‘Posse Comitatus Act,’’ for more details. There are a few instances when the Department of Defense does not wait for a presidential proclamation or other presidential directive before calling in the military. The first instance is in sudden and unexpected emergencies that require immediate military action be taken.163 The second instance is in passive assistance,164 which includes such assistance as personnel, arms, ammunition, aircraft, riot control agents, concertina wire, firefighting equipment, equipment of a protective nature, and other equipment, such as clothing, communications equipment, and searchlights.165 These are types of assistance that incidentally aid civilian law enforcement.166 Additional permissible passive or ‘‘indirect’’ actions include mere presence, preparation of contingency plans for mobilization, advice on tactics or logistics, aerial reconnaissance, delivery of military equipment and supplies, training local law enforcement, and aerial photographic reconnaissance flights.167

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Lead Federal Agency The conduct of the response at the state level includes state law enforcement, the state troopers, the state militias, the National Guard, and civilians in the emergency-management offices and other relevant departments such as departments of health. At the local level, police forces and civilian emergency-management personnel conduct the response. At the national level, FEMA coordinates the federal response of civilian personnel. The DOD coordinates the military response. FEMA operates under two authorities168 and divides the country into 10 regions. Emergency-management planning is conducted at the lowest possible level of governance. FEMA is home of the Office of National Security Coordination (ONSC). ONSC is responsible for developing, exercising, and validating agency-wide continuity of operations (COOP) and continuity of government (COG) plans, as well as overseeing and maintaining COOP and COG readiness including the Mount Weather Emergency Operations Center. EO 12656 assigns national security emergency responsibilities to respective federal agencies. With regard to the government’s security forces, the DOJ leads the coordination of federal government domestic lawenforcement activities related to national security emergency preparedness, including federal law-enforcement liaison with, and assistance to, state and local governments.169 In addition, the DOJ coordinates planning for national security emergency law-enforcement activities that are beyond the capabilities of state and local agencies and develops intergovernmental and interagency law-enforcement plans and counterterrorism programs to interdict and respond to terrorism incidents in the United States. The DOD has lead responsibility for ensuring military preparedness and readiness to respond to national security emergencies,170 and coordinating national security emergency water resource planning with federal, state, and local governments.171 The DOD has lead to develop, in coordination with the Attorney General of the United States, specific procedures by which military assistance to civilian law-enforcement authorities may be requested, considered, and provided.172 The DOD is to support the Director of FEMA in the development of plans for mutual civil–military support during national security emergencies.173 In the event of a terrorism incident, press releases on classified Presidential Decision Directive-62 (PDD-62)174 state that the DOJ, through the FBI, is the lead federal agency for crisis management and operational response to a weapon of mass destruction (WMD) incident. FEMA is the lead federal agency for consequence management, and is responsible for preparing for and responding to the consequences of a WMD incident with participation of other departments and agencies, who will continue training and providing equipment to first responders to prepare them for response to WMD

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incidents. Emphasis will be placed on preparing those responders in the largest 120 cities. The DOD, in coordination with other federal departments and agencies, will provide training to metropolitan first responders and will maintain trained military units to assist state and local responders. One example such training is the National Guard concept of initially forming 10 Rapid Assessment and Initial Detection (RAID) teams in each FEMA Region. These teams are designed to provide rapid response to a WMD incident to assist state and local responders.

State Security Forces The state and local security forces include state militias and law enforcement. In the exercise of their police powers, these forces prevent crime and prepare for and respond to emergencies and disasters. State militias175 are the state defense forces and the National Guard forces of the states.176 There are four types of state-based military responders: • State active duty—state funded and state controlled; • Title 32 status—federally funded but state controlled, usually for training or limited operations), most notably with no Posse Comitatus constraints;177 • Title 10 status—federally funded and federally controlled; and • A combined response made up of Title 10, 14, 32 and state active duty forces may be employed in response to individual incidents or events.178

State active duty forces are the state defense forces. They report to the governor. ‘‘A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.’’ This preserves the separation of the state defense forces from the National Guard. However, the U.S. Supreme Court ruled: ‘‘It is true that the state defense forces ‘may not be called, ordered, or drafted into the armed forces’ . . . It is nonetheless possible that they are subject to call under 10 USC 331–333, which distinguish the ‘militia’ from the ‘armed forces,’ and which appear to subject all portions of the ‘militia’—organized or not—to call if needed for the purposes specified in the Militia Clauses.’’179 As we saw in the PCA section, the President can federalize only in certain instances. There has also been a recognition that the national military may need to be called in if the state and local police and National Guard cannot or will not handle the disturbances. Disturbances too extensive to be handled by state and local

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police forces often lead to involvement of the National Guard, as an agent of either the state or federal government. In some instances, the armed forces may be called upon.180 Although every state has laws authorizing state defense forces, approximately 25 states, in addition to Puerto Rico, currently have active state defense forces, each with different levels of activity, state support, and strength. State defense forces generally operate with emergency management and homeland security missions. Half of the states organize their state defense forces in parallel to their National Guard forces, which are federal entities part of either the U.S. Army or the U.S. Air Force. Both report to the governor through the National Guard Adjutant General. The state National Guards are reserve forces of the Army and Air Force. Individuals may dual enlist in both the state defense force and in the state National Guard. In this instance of dual enlistment, the individual is subject to call-up but not to execute the laws, suppress insurrections, or repel invasions.181 Governors are not permitted to withhold their consent to call-ups to active duty missions outside the United States.182 Permitting dual enlistment was found to be a necessary and proper exercise of Congress’s power to raise and support armies.183 In special circumstances, and when the President and a governor agree, a National Guard commander can be placed on Title 10 status and retain Title 32 authority. Title 10 forces may be placed under the control of the commander who reports both to the governor and the supported combatant commander through an interplay of 32 USC 315 and 325 and 10 USC 104. This would get around Posse Comitatus. Often, the National Guard in state status is the first military responder, working under the control of the governor. In addition, the adjutant general is also often the state’s Director of Emergency Management. As such, he or she not only controls state National Guard, but also manages the state’s Crisis Management response in support of local governments. The national, state, and local governments have law-enforcement agencies. At the national level, the FBI is the principal lead, but there are other federal agencies with law-enforcement powers, such as the DEA, IRS, and INS. The FBI wears a few hats. As a member of the USIC, it conducts or coordinates all domestic intelligence collection efforts desired by the USIC. As the country’s lead federal law-enforcement agency, the FBI conducts criminal investigations, including investigations into national security crimes. Finally, as the lead federal agency for crisis management in the event of a presidential declaration of an emergency, disaster, or other crisis, the FBI is the lead federal agency in the event of a terrorist attack. At the state level, law-enforcement personnel are principally state troopers, but there are others as well. At the local level, the police forces are the law-enforcement agencies.

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Summary of Federalism The U.S. Constitution requires a distinction between ‘‘what is truly national and what is truly local.’’184 This section describes the police powers, the state governments’ primary source of power to govern. The federal government also holds some police powers. State and local police powers are exercised through law enforcement. Federal police powers are exercised through the DOJ, FBI, other law-enforcement agencies, and civilian agencies such as FEMA. Emergency preparedness is an area that preserves the constitutional distinction between internal and domestic concerns—the jurisdiction of the states—and external and foreign concerns—the jurisdiction of the national government. The war power of the Congress is not unlike the police power, but it is the police power raised to the highest degree.185 The war power and the police power are well-known functions of government, and both are rules of necessity, implicitly or expressly existing in every form of government. One preserves sovereignty, and the other preserves the health and morals of the community.186 Whether the war power cannot be exercised within the United States is debatable. The police power, though, enables all levels of government to prepare for and respond to an emergency. The police power allows the states to effect extraordinary regulations in emergencies, but it is less extensive than the war power of the federal government.187 SEPARATION OF CIVIL FROM MILITARY The separation of the civilian sector from the military sector in the United States has been a strongly held and firmly rooted tradition in the

Table 3.2 Summary of Federalism Police power is the power to govern. Police power allows regulation for health, morals, and welfare, securing peace, security from crime, public safety, order, and comfort. Police power allows restraints on liberty and use of property in the interests of peace, safety, health, and morals. Threat is domestic. Response resides with state and local governments. Response may include the national government  at the request of the state legislature or governor;  at the President’s initiative; or by the  national military. Conduct of police power is by state militias, National Guard, and law enforcement.

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United States. In the U.S. Constitution, separation of the civilian sector from the military sectors takes the form of civilian control of the military. In the Bill of Rights, this separation takes the form of keeping the military out of people’s homes and allowing citizens to retain arms. The cultural and legal foundations of the public demand for civilian control over the coercive power of the government are reflected in the founding documents. Created in 1776, The Declaration of Independence lists some of the ‘‘injuries and usurpations’’ that King George III used to establish ‘‘absolute tyranny’’ over the colonies. ‘‘In every stage of these oppressions . . . A prince whose character is marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.’’ As free and independent states, their first declaration was to announce their power to declare war and conclude peace. A pervasive theme of The Federalist Papers was that the government of the people controls. Even though the original intent of the framers was to make the President ‘‘top general and top admiral,’’188 ‘‘Generals and Admirals even when they are ‘first’ do not determine the practical purpose for which troops are to be used; they command them in the execution of policy made by others.’’189 Moreover, the President is not to declare war and raise armies.190 The drafters of the U.S. Constitution had British military abuses fresh in their minds when they set out to write it. The principle of civilian control of the military is consistent with the goal of the U.S. Constitution to diffuse power. The provisions of the U.S. Constitution that ensure civilian control of the military are designed to achieve two goals: first, preventing the executive or legislative branches from using the military to wrest power from the people, and, second, preventing the military from escaping subordination to civilian authority. Concern about civil–military relations becomes more relevant in wartime than in peacetime. External threats to the country generally are the impetus for revisiting the relationship. Today is no different. Until 1950, little was written regarding military relations because the security of the United States was not in jeopardy. The United States’ involvement in World War II, the Korean War, and the beginning of the Cold War were the precipitating events that led to the scholarship on civil–military relations that continues today. Another event that precipitated attention was the rising influence of then General Colin Powell as Chairman of the Joint Chiefs of Staff in national policy discussions in the 1980s. His involvement called into question the Goldwater-Nichols Act that created the JCS. Finally, academic debates ensued about whether civilian control of the military existed in the United States in the Cold War Period, during the Vietnam era, and in the post–Cold War period.191 Although a coup d’etat is not likely in the United States, the separateness of the military from the civilian sector and civilian control of the military continues to be a real concern within the United States.

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The military is different. The military is a profession. Huntington’s model of the modern definition of professionalism is expertise, responsibility, and corporateness. Military professionalism is more than an armed force’s ability to wage war, but also includes a soldier’s function and ethos. Essential to the definition of military professionalism is an ethos of service to society and the uniqueness of the function.192 As part of the responsibility, the Armed Forces provide the United States with the safety and security that fosters freedom and democracy.193 The Constitution gives U.S. society control of the military. The individual soldier’s loyalty is to the Constitution and not to the individual.194 ‘‘No civilian profession requires the sacrifice of one’s life in its service, whereas the military regularly requires it. For members of the military, the requirement of service is total.’’195 This means that the military can be ordered to go anywhere and perform functions that other security forces might not be able or willing to perform. Achieving Separation and Control The U.S. Constitution drives the law and the structure on separating the military from civilians and achieving civilian control at the national, state, local, and citizen levels of government. Civilian control at the national level is through diffusion of the war powers and the civilian chain of command. Because the military is an arm of the national government whose purpose is to prepare for and conduct war in order to insure the national security, its roles, responsibilities, and maintenance are controlled through various mechanisms previously described in the ‘‘Separation of Powers’’ section. Article I provisions create an army and navy and give Congress the power to maintain the Armed Forces. The National Security Act of 1947 created the national security apparatus of the country, including the civilian control of the military and the organization and structure of the Department of Defense to ensure a civilian chain of command. Article II provisions appoint the President as the Commander-in-Chief. The chain of command for the U.S. Armed Forces is as follows: the top three officials are civilian: the Commander-in-Chief, the Secretary of Defense, and the secretaries of the military departments. The Chairman of the Joint Chiefs of Staff and the respective Chiefs of Staff are military personnel. The role of the President as the Commander-in-Chief is a civilian, not military, office. The President receives compensation for his services as the Chief Executive of the Nation, rather than for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces. It is equally clear under the Constitution that the President’s duties as Commander-in-Chief represent only a part of the ex officio duties as Chief Executive, which is a civil office. The two World War Presidents, President Wilson and President Roosevelt, both clearly recognized the

U.S. Law

civilian nature of the President’s position as Commander-in-Chief. President Roosevelt, in his Navy Day Campaign Speech at Shibe Park, Philadelphia, on October 27, 1944, pronounced this principle as follows: ‘‘It was due to no accident and no oversight that the framers of our Constitution put the command of our armed forces under civilian authority. It is the duty of the Commander-in-Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.’’ It is also to be noted that the Secretary of War, who is the regularly constituted organ of the President for the administration of the military establishment of the nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service (United States v. Burns, 79 USC 246 [1871]). On the general principle of civilian supremacy over the military, by virtue of the Constitution, it has recently been said: ‘‘The supremacy of the civil over the military is one of our great heritages’’ (Duncan v. Kahanamoku, 327 USC 304, 325 [1945]).196 The National Security Act of 1947, which created the DOD,197 ensured that the Secretary of Defense is a civilian. A person may not be appointed as Secretary of Defense within 10 years after relief from active duty as a commissioned officer of a regular component of an armed force.198 In addition to the Secretary of Defense, the secretaries of the military departments are also civilian.199 They are the Departments of the Army, Navy, and Air Force. Their chiefs of state are military personnel. These include the Army Chief of Staff, Air Force Chief of Staff, Chief of Naval Operations, and Commandant of the Marine Corps. The Goldwater-Nichols Act, which created the Joint Chiefs of Staff, ensures that the chairman is always in an advisory role to his civilian supervisors. Although the Chairman of the JCS is not technically considered part of the Armed Forces, the Chairman of the JCS is the principal military adviser to the President, the National Security Council, and the Secretary of Defense.200 Civilian control is achieved at the state level through diffusion of power, possession of a state militia, and a civilian chain of command. The principle of federalism ensures that the states possess their own militia. Even though the states are constitutionally barred from keeping troops,201 Table 3.3 Civilian Control of the Military at the National Level National military Control through diffusion of power War powers—Congress declares war and maintains the military; President is CINC, laws are executed; military goes outside the country generally. Chain of command is civilian:  CINC, Secretary of Defense, and secretaries of the military departments are civilians.  CJCS is military; Chiefs of the Services are military.

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they are permitted to have militias.202 Federal law and the Courts distinguish between militias and the armed forces. As per 32 USC 109(c): A defense force . . . may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

Although the states possess militias, Congress provides for them. Pursuant to spending clauses, the Congress has enacted Title 10 of the U.S. Code, which governs the Armed Forces. Congress is responsible for their organization, arming, and discipline.203 Finally, the state militias and the National Guard are under the governor, unless federalized by the President. Control is also achieved by limits on the President’s power to federalize state militias. Disturbances too extensive to be handled by state and local police forces often lead to involvement of the National Guard, as an agent of either the state or the federal government. The President may call in the national military in certain circumstances. For example, if the state and local police and National Guard cannot or will not handle the disturbances, national military may be called in.204 Control of the military by civilians extends to the general civilian ‘‘check’’ on government power through the Bill of Rights. The Second Amendment states that, ‘‘A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’’ The Third Amendment states that, ‘‘No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in manner prescribed by law.’’ The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Table 3.4 Civilian Control at the State Level Control through diffusion of power  States have militias.  Congress maintains them. Control through civilian chain of command Control through limits on federalizing

U.S. Law

The Role of the Courts in Separation of Civilians from the Military There is no express role for the judiciary in the military, but the courts have judicial review of the different branches’ powers. It is in the judicial review of some cases that the separateness of the military from civilians is discussed. This section will look at the doctrine of judicial deference to the military and the doctrine of military separatism. The doctrine of judicial deference to the military refers to the courts’ recognition that civilians and the military require different expertise and knowledge, and that the courts rely on the Congress, principally, to make determinations about what rules the military needs. The U.S. Supreme Court held that the power to prescribe rules for those in the armed services ‘‘is given without any connection between it and the Third Article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.’’205 A member of the armed services is ‘‘subject to military law and the principles of that law, as provided by Congress, [constitute] for him due process of law in a constitutional sense.’’206 We, of course, do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution requires such deference to congressional choice [citations omitted]. In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch.207

The courts’ discussion of the separation of the military and deference to Congress arises in due process cases. ‘‘The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress and with the President [citations omitted].’’208 This is not an absolute deference. The judicial test for any military policy is whether there is any rational basis for it. Keeping in mind the goal of military effectiveness, there is deference to military or congressional Table 3.5 Civilian Control by Citizens Control through the Bill of Rights Citizen militias Right to bear arms No soldiers in homes No unreasonable searches and seizures without a warrant

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expertise in the serious business of raising and preparing military forces to fight and win wars.209 The ‘‘traditional deference owed to military judgment did not justify regulation, absent showing of necessity of restriction on religion to military’s central mission of effective combat.’’210 A similar stand is used in speech cases. Speech loses its protection if ‘‘it interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops.’’211 With regard to rights of service members, the deference to Congress is most evident. They are a ‘‘society apart, and service members enjoy more limited constitutional rights than U.S. civilians.’’212 After the Vietnam-era draft, the U.S. Supreme Court constructed a doctrine of military separatism that shields military-related decisions from the usual scrutiny of judicial review. Because of the differentiation between military society and civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules governing the military.213 Therefore, constitutional challenges of vagueness or overbreadth to articles of the UCMJ are subject to a different standard of review than are nonmilitary provisions. The U.S. Supreme Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. The American people have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that ‘‘it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise’’ (United States ex rel. v. Toth v. Quarles, 350 U.S. 11, 17 ([1955]). In In Re Grimley, 137 U.S. 147, 153 (1890), the Court observed: ‘‘An army is not a deliberative body. It is the executive arm. Its law is that of obedience in the soldier.’’ More recently, we noted that ‘‘the military constitutes a specialized community governed by a separate discipline from that of the civilian’’ (Orloff v. Willoughby, 345 U.S. 83, 94 [1953]), and that ‘‘the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . ’’ (Burns v. Wilson, 346 U.S. 137, 140 [1953]) plurality opinion . . . Just as military society has been a society apart from civilian society, so ‘‘military law . . . is a jurisprudence which exists separate and apart from the law which governs our federal judicial establishment’’ (Parker v. Levy).214 ‘‘The opinion changed the balance of civil–military relations by characterizing the military as not just an institution with distinctive disciplinary requirements, but as a separate society with a different relationship to the Constitution than civilian society.’’ The Dynes case articulated the distinction between Article I courts, created by statute by Congress, and Article III courts, part of the judicial branch. Since Congress created the military justice system, the courts

U.S. Law Table 3.6 Summary of Three Constitutional Principles Constitutional Principle Separation of civilian and military

Article 4, Sec. 4

Separation of powers Federalism

Salient Features

Response

Civilian control of War the military Civilian chain of command

Emergency prepared-ness

War is foreign and external Violence is domestic and internal

Military operation Emergency Management

Security Force Military under civilian chain of command State militia and National Guard under governor; law enforcement under civilian control Military

State militias and National Guard; in limited instances, these can be federalized for domestic purposes National Guard can be federalized into foreign war Military operation Military

Threat is foreign War powers are national Threat is domestic Emergency management and internal Major disasters and emergencies Police powers are primarily state and local, but the national government possesses them as well

State militia, National Guard, state and local law enforcement FBI and other national law enforcement Federalization of state militias DOD support to civil authorities

martial had jurisdiction over this case. Later, military justice was brought more into the mainstream, de-emphasizing its role as merely an aspect of a commander’s disciplinary authority.215 The Dynes Court emphasized the separateness of military justice system, whereas the Runkle court affirmed

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the subordination of military command to the rule of law. ‘‘Just as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.’’216 Conclusion of Civilian and Military The Constitution requires a separation of the military sector from the civilian sector; such separation is manifested through various control mechanisms reflected in the design of the Constitution—diffusion of power. Addition control of the military is achieved through the civilian chain of command. CONCLUSION OF CHAPTER 3 The U.S. Constitution creates a divided arrangement for the governance of the country. This intentional design distributes the power of government so it will not threaten individual liberty. This distribution of power and responsibility is evident in how the Constitution characterizes and responds to threats. If the threat is external or foreign, it is the exclusive jurisdiction of the national government. Alternatively, an internal and domestic threat is principally to be managed by the states. Exceptions include the states’ inability to handle the threat (in which case the national government can be invited in), cases with an exclusive federal role (such as a problem involving federal property or assets), and cases in which the President feels the emergency requires him to act unilaterally. After the type of threat is determined, and thus which level of government is to respond, then the question becomes which security forces should respond. If the threat is external and foreign, then it is war, and the military responds. In contrast, there are several types of internal and domestic threats—major disasters, insurrections, rebellions, national security emergencies, law-enforcement emergencies, civil emergencies, civil defense emergencies, among others—and the states and local governments are presumed to have jurisdiction to respond. They may request either federal lawenforcement assistance or military assistance in carefully circumscribed cases. How does a country’s system of government impact its intelligence activities? • What does the law say about intelligence activities? • Can the divided arrangements in the intelligence activities of the United States prevent and prepare for an attack by a global threat?

4

The Hypothesis, Research Question, Methodology The general proposition is that a country’s system of government impacts its response to threats and, specifically, its intelligence activities. The specific proposition is: The U.S. constitutional government—its principles of separation of powers, federalism, and the separation of civilian from military sectors—creates a divided arrangement between the national government and the state and local law-enforcement communities, and between the national military and state and local civilian sectors. The context for the discussion is the new threat paradigm, a global threat by Al Qaeda, and the new response paradigm, a political–military strategy requiring integration of civilian and military activities in a unity of effort in intelligence sharing. The research question is: Do domestic arrangements for intelligence in the United States enable the new response paradigm? The following questions guided my research: • With regard to intelligence in the United States:    

What is the definition of ‘‘intelligence’’? What are the activities of the USIC? What is the organization and structure of the USIC? What information sharing arrangements are there between the USIC and law enforcement, and between the USIC and emergency-preparedness organizations?

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The Civilian-Military Divide • Because the needs of the military drive the collection requirements of the USIC, and the military is the primary consumer of intelligence besides the President, and the USIC is predominately a military organization:  What does military doctrine say about counterinsurgency, homeland security, and intelligence?

I am using a legal approach to address these questions. The framework for discussion of the domestic arrangements begins with three principles of the Constitution of the United States—the separation of powers, federalism, and separation of civilian and military efforts. The laws that flow therefrom further inform the discussion. The primary legal sources include the National Security Act of 1947; EO 12333, as amended; the Foreign Intelligence Surveillance Act of 1978; the post-9/11 statutes, the USA Patriot Act and the Intelligence Reform and Terrorism Prevention Act of 2004; and several military doctrines, Counterinsurgency, JP 3-24 (formerly FM 3-24/ MCWP 3-33.5), Homeland Defense, JP 3-27, Civil Support, JP 3-28, and Joint Intelligence, JP 2-0. In addition, the discussion includes a review of the country’s security forces and Titles 10, 14, and 32 of the United States Code. I conclude that the intelligence activities in the United States reflect the divided arrangement of the U.S. constitutional system, designed to diffuse government power so as not to be a threat to individual liberty. Notwithstanding the facts that policies, plans, and procedures are in place to coordinate intelligence horizontally and vertically and the political will to achieve unity of effort appears to be present, this divided arrangement prevents the sharing of intelligence between the USIC and the state and local lawenforcement communities. It also prevents interaction between the military and civilian sectors. The divided arrangements of the U.S. constitutional system do not reflect the new response paradigm and are not designed to meet the new threat paradigm.

5

Intelligence: The Domestic Arrangements of the United States Most nation-states have domestic arrangements to deal with security threats. Intelligence is one such arrangement. The 9/11 Commission indirectly declared the attacks of 9/11 an ‘‘intelligence failure’’ because of the lack of intelligence sharing among intelligence agencies. This chapter investigates the domestic arrangements for intelligence in the United States by looking at intelligence and war, post-9/11 efforts to achieve information sharing, and intelligence and emergency preparedness. INTELLIGENCE AND WAR The USIC is a national government community of 16 federal agencies that are part of the war apparatus of the U.S. government. The charter for the USIC is the National Security Act of 1947, as amended. In addition to Congress, Presidents have influenced the definition, activities, and organization and structure of the USIC through amendments to EO 12333. This section will examine the legal meaning of intelligence, the activities of the USIC through a device known as the intelligence cycle, and the organization and structure of the USIC and the changes in those areas since 9/11. The Legal Meaning of Intelligence The National Security Act of 1947 provides that ‘‘the term ‘intelligence’ includes foreign intelligence and counterintelligence.’’1 It further provides

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that ‘‘foreign intelligence’’ means information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorist activities.2 The term ‘‘counterintelligence’’ means information gathered and activities conducted, to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorist groups.3 Examples of foreign intelligence include: • Plans by the Chinese government to purchase technology for its weapons program • Applications for visas by scientists from India to work at a U.S. national lab in the United States • Telephone conversation by a British diplomat made from the British embassy in Washington, D.C. • Car rental by an Afghani visitor in the United States • Conversations among UN personnel at UN headquarters

Examples of counterintelligence include: • Background checks conducted by the Department of Energy on potential contractors • Sign-in sheets at DOD contractors’ places of business • Databases of information on who accessed certain data at U.S. national labs4 • Security clearance investigations • Lists of attendees at conferences on U.S. technology development and applications • Requests for U.S. patent approvals • Investigation into the theft of a U.S. company’s proprietary and trade secret information by individuals associated with a Taiwanese company5 • FBI investigation of a FBI counterintelligence officer who volunteered to spy for the Soviet Union in 1985 (investigative techniques included gathering information through covert surveillance that included photography, court-authorized searches, forensic computer analysis, and other sensitive techniques)6

The definition of ‘‘intelligence’’ assumes the threat is foreign, thus it cannot be domestic or a U.S. citizen, and thereby preserves the distinction between external and internal. Activities of the U.S. Intelligence Community The activities of the USIC are often explained via a device known as the ‘‘intelligence cycle.’’ The phases in the intelligence cycle are requirements,

Intelligence: The Domestic Arrangements of the United States

collection, processing and exploitations, analysis, and dissemination. This section will briefly review these phases.

Requirements In the intelligence cycle, the first phase is referred to as the ‘‘requirements’’ or planning and direction phase. The production of intelligence is driven by the requirements of the users or consumers who are all located in the executive branch of the national government. However, the resources to meet those requirements are provided by the legislative branch. Although there are three levels of consumers7 in the U.S. government who contribute to the requirements, the focus here is at the community level—the consumers are the President and senior policy makers who need information that spans multiple departments and agencies. The type of intelligence produced to meet their needs is national intelligence.8 While the requirements of the USIC can be found in the news sections of many newspapers, another way to learn its requirements is through presidential guidance: typically, the President’s national policy statements. The National Security Strategy of the United States of America is the principal policy document setting forth requirements. Since 9/11, other national strategies have been introduced, most notably, The National Strategy for Homeland Security. Together, these are the principal documents that provide the President’s requirements for the national security of the country. President Bush stated: The National Strategy for Homeland Security complements the National Security Strategy of the United States by addressing a very specific and uniquely challenging threat—terrorism in the United States—and by providing a comprehensive framework for organizing the efforts of federal, state, local and private organizations whose primary functions are often unrelated to national security . . . Thus, the National Security Strategy of the United States and National Strategy for Homeland Security work as mutually supporting documents, providing guidance to the executive branch departments and agencies.9

The National Strategy for Homeland Security10 states, ‘‘Homeland security is a concerted national effort to prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimize the damage and recover from attacks that do occur.’’11 To achieve these objectives, the Critical Mission Areas are Intelligence and Warning, Domestic Counterterrorism, and Emergency Preparedness and Response.

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Intelligence and Warning Terrorism depends on surprise . . . We must have an intelligence and warning system that can detect terrorist activity before it manifests itself in an attack so that proper preemptive, preventive, and protective action can be taken.12

Domestic Counterterrorism The attacks of 9/11 and the catastrophic loss of life and property that resulted have redefined the mission of federal, state, and local law-enforcement authorities. While law-enforcement agencies will continue to investigate and prosecute criminal activity, they should now assign priority to preventing and interdicting terrorist activity within the United States. The nation’s state and local law enforcement officers will be critical in this effort.13

Emergency Preparedness and Response We must prepare to minimize the damage and recover from any future terrorist attacks that may occur despite our best efforts at prevention. Past experience has shown that preparedness efforts are key to providing an effective response to major terrorist incidents and natural disasters.14 The strategies are implemented through National Security Presidential Directives (NSPDs) and Homeland Security Presidential Directives (HSPDs). See Appendix C, ‘‘Requirements: National Security Strategies,’’ for a list of national strategies requirements documents. It is widely understood that highest priority among requirements is given to support to SMO. This was formally established in PDD-35,15 a classified document that defines intelligence requirements from Tier 0 to tier 4. Tier 0 is warning and crisis management and Tier 4 is for countries that are virtually of no interest to the United States. There is no public information that this has been superceded.16 The second priority is providing political, economic, and military intelligence on countries hostile to the United States to help to stop crises and conflicts before they start. The third priority is protecting U.S. citizens from new transnational threats, such as drug traffickers, terrorists, organized criminals, and weapons of mass destruction. High priority is also assigned to intelligence support to activities addressing counterproliferation as well as international terrorism, crime, and drugs. The priority given to military operations in requirements and collection activities means that, besides the President, the military are the primary consumers of intelligence.

Intelligence: The Domestic Arrangements of the United States

Collection After requirements, collection is the next phase of the intelligence cycle. Collection is the ‘‘bedrock of intelligence.’’17 Only USIC members are given the task of fulfilling collection requirements. Collection by the USIC can be conducted anywhere. Section 2.3 of EO 12333, as amended, describes what information can be collected by the USIC and who can collect it. Domestic collection activities are governed by the FISA.18 Since 9/11, FISA and the National Security Act of 1947 were amended by the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act (USA Patriot Act),19 and the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The President expanded domestic collection with the NSA domestic surveillance program. These are discussed in this section. Congress acknowledged that foreign threats could exist on U.S. soil and passed the FISA to enable the FBI to collect foreign intelligence in the United States. The constitutionality of FISA has consistently been upheld.20 FISA created the FISA Court and FISA Court of Review to consider applications for the FISA warrants. The courts conduct deliberations in secret. Upon application by the DOJ, the FISA Court authorizes warrants for electronic and physical searches, electronic surveillance, physical searches, pen registers, and trap and trace devices for the purpose of collecting foreign intelligence from a foreign power or an agent of a foreign power on U.S. soil. The law also authorizes the collection of foreign intelligence against U.S. persons who are agents of a foreign power. Who? In general, the USIC can collect information on anyone and anything, but there are special rules for collection against U.S. persons inside and outside the United States. In the United States and prior to 9/11, in order to obtain a FISA warrant, the FBI had to demonstrate to the FISA Court that the target of surveillance was a ‘‘foreign power’’ or an ‘‘agent of a foreign power.’’ The FBI also had to demonstrate that there was a nexus between the foreign intelligence information sought and a ‘‘foreign power’’ and ‘‘agent of a foreign power.’’ Since 9/11, IRTPA has removed this nexus. It amended the definition of ‘‘agent of a foreign power’’ to include one who engages in international terrorism or activities in preparation thereof. Known as the ‘‘lone wolf amendment’’ or ‘‘Moussaoui fix,’’ the effect of this amendment is that a warrant can be issued to obtain foreign intelligence from a person who engages in international terrorism activities or activities in preparation thereof. The target does not have to be an ‘‘agent of a foreign power.’’ In other words, the target can be a U.S. citizen or other U.S. person. This provision removed any bias in the definition of ‘‘intelligence’’ that only foreign persons are threats and U.S. citizens are not threats.

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Where? In general, the USIC can collect intelligence anywhere. If collection is within the United States, the FISA applies, and all members of the USIC must coordinate with the FBI. If collection is conducted outside the United States, the FISA applies, and all members of the USIC must coordinate with the CIA. If collection is on a U.S. person outside the United States, the USIC must coordinate with the FBI. If the collection is on non-U.S. persons, then the CIA runs the operation including coordination with foreign governments. Relationships between the members of the USIC, foreign intelligence services, and foreign governments are coordinated by the CIA, and by the Defense Intelligence Agency (DIA) for the DOD intelligence components. What? Understanding what can be collected requires a discussion of the disciplines of intelligence or the INTs (discussed below), the permissible domestic collection activities before and after 9/11, and the NSA domestic surveillance program.

The INTs There are five main disciplines of intelligence, also known as the ‘‘INTs’’—HUMINT, SIGINT, IMINT, MASINT, and OSINT—the first four of which are classified. Human intelligence (HUMINT) is espionage or spying. HUMINT generally requires sending agents to foreign countries where they attempt to recruit foreign nationals to spy. Diplomatic reporting is a type of HUMINT.21 Some HUMINT sources volunteer and are known as walk-ins.22 Some HUMINT involves direct spying including stealing information or observation.23 Some HUMINT is through liaison relationships with other intelligence services (HUMINT-to-HUMINT relationships). Signals intelligence (SIGINT) is gathered by Earth-based collectors—ships, planes, ground sites—or satellites.24 The NRO builds the satellites and the NSA is responsible for SIGINT collection and protecting the United States from foreign SIGINT activity.25 SIGINT consists of different types of interception:26 • Interception of communications between two parties (COMINT); • Interception of data relayed by weapons during tests (TELINT); and • Interception of electronic emissions from modern weapons and tracking systems (ELINT).

Imagery intelligence (IMINT) is also referred to as ‘‘PHOTINT’’ and ‘‘GEOINT,’’ or geospatial intelligence, which the National GeospatialIntelligence Agency defines as ‘‘information about any object—natural or manmade—that can be observed or referenced to the Earth, and has national security implications.’’27

Intelligence: The Domestic Arrangements of the United States

Measurement and Signatures Intelligence (MASINT) collects information about weapons capabilities and industrial activities. MASINT can be used against a wide array of intelligence targets including WMD development and proliferation, arms control, environmental issues, narcotics, weapons developments, space activities, and denial and deception practices.28 For example, MASINT can help identify types of gases leaving a factory, which can help with chemical weapons identification.29 Open source intelligence (OSINT) includes information that is openly available, such as from the media, on the Internet, public data, and professional and academic output.30 In addition, each of the classified INTs has an OSINT component.31 Permissible Domestic Collection Among the changes to FISA made by the USA Patriot Act are the lowering of the standard for a warrant and the expansion of collection activities. When a law-enforcement agency wants to get information, a warrant is generally required and the standard for the warrant is probable cause. That is, the law-enforcement agency must have probable cause that a crime is being committed, is about to be committed, or has been committed. The standard for a FISA warrant is lower. The standard became even lower with the enactment of the USA Patriot Act. Prior to 9/11, the FISA court authorized orders approving electronic surveillance or a search warrant to obtain foreign intelligence information32 when there was probable cause to believe that the target of such surveillance or search was a foreign power or an agent of a foreign power.33 This ‘‘probable cause’’ has nothing to do with a crime; rather, it is the category of person and thus a lower standard. The statute required that the government certify to the Court when seeking the warrant that the primary purpose of the FISA search or surveillance is to obtain ‘‘foreign intelligence information.’’ The statute also required that the certification be signed by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President;34 typically, this person was the FBI Director.35 With the enactment of the USA Patriot Act, the ‘‘primary purpose’’ standard became a ‘‘significant purpose’’ standard.36 That is, the government must certify to the Court when seeking the warrant that a significant purpose of the FISA search or surveillance is to obtain ‘‘foreign intelligence information.’’ Thus, a lower standard is now applied. Expansion of FISA Collection Authority The USA Patriot Act expanded collection in three ways: First, it changed the standards for a warrant (see above discussion). Second, it

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authorized specific types of electronic surveillance. Third, it added items that could be collected, including grand jury information,37 business records,38 and National Security Letters.39 The effect of these provisions is an expansion of the FBI’s collection authority. The Terrorism Surveillance Program In October 2001, President Bush issued a secret Executive Order authorizing the NSA to conduct surveillance on international telephone calls between the United States and foreign places. The U.S. Department of Justice issued a white paper approving its legality.40 In 2006, the New York Times revealed the existence of the NSA domestic surveillance program. This program was challenged in several federal courts. The challenges, now settled, are described in detail in Appendix D. Moreover, there were some news reports that the Foreign Intelligence Surveillance Court limited the authority of the US also. Finally, Congress passed legislation to address surveillance of persons outside of the US. See Appendix D, ‘‘Collection: Terrorism Surveillance Program—Status in the Courts and Congress.’’ How? The methods of collection differ depending on where collection takes place. Within the United States, the methods of collection are governed by FISA. FISA allows the use of electronic surveillance, physical searches, trap and trace devices, and pen registers as well as the collection of certain business records. The FISA statute does not permit collection via HUMINT, MASINT, or IMINT technologies. However, for foreign intelligence and counterintelligence, SIGINT and OSINT are permissible. Moreover, inside the United States, the method selected must be the least intrusive. Outside the United States, the methods of collection are unlimited unless the target is a U.S. person, in which case there are special rules. Processing and Exploitation The next phase in the intelligence cycle is processing and exploitation. Collection produces information, not intelligence. Information that is collected is raw data. That information must undergo processing and exploitation before it can be regarded as intelligence and given to analysts.41 Processing and exploitation are known as ‘‘downstream activities’’ (the activities that follow collection).42 Intelligence collected by technical means (imagery, signals, test data, and so forth) does not arrive in ready-to-use form. It must be processed from complex digital signals into images or intercepts, and these must then be exploited—analyzed if they are images, perhaps decoded, and probably translated, if they are signals. Processing and exploitation are key steps in converting technically collected information into intelligence.43

Intelligence: The Domestic Arrangements of the United States

Analysis Analysis, the next phase of the intelligence cycle, describes what is going to happen in the future. Analysts take information in the context of current and historical events and give it meaning so that decision-makers can make choices and, in general, surprises can be avoided. The events of 9/11 are an example of analysis challenges. President Bush received intelligence in August 2001 that Al Qaeda was planning an attack inside the United States. Yet, analysts and decision-makers dismissed the signals because an attack inside the United States seemed too fantastic. The products of analysis by the USIC are generally of three kinds of intelligence. Current intelligence describes the existing situation. Indications and warnings (I&W) intelligence reports time-sensitive information on foreign developments that could involve a threat to the United States.44 Long-term intelligence deals with trends and issues that may not be of immediate concern but are important and may come to the forefront if they do not received current attention.45 See Appendix E, ‘‘Analysis: Intelligence Products’’ for examples of some of the current, long-term, and I&W intelligence reports. In the USIC, three agencies perform all-source analysis: the CIA-Directorate of Intelligence, DIA, and INR. These agencies’ purpose is to meet the needs of the three different consumers of intelligence: the policymakers; the President, the Secretary of State, and the Secretary of Defense; and of the CJCS.

Dissemination The final phase in the intelligence cycle is dissemination. Dissemination refers to sharing intelligence. The National Security Act of 1947 and EO 12333, as amended, allow dissemination by each member. In general, dissemination is encouraged. The dissemination rules generally provide for horizontal sharing, i.e., within the USIC and with foreign governments. With regard to sharing intelligence between the USIC and foreign organizations, the DNI and the senior officials in the USIC are authorized to disseminate intelligence to foreign governments46 Dissemination rules are subject to two limits: It is illegal to disclose classified information to unauthorized persons, and it is illegal to disclose intelligence sources and methods. In general, sharing with other national-level government organizations, and nongovernmental entities is not permissible due to these limits. Vertical sharing refers to sharing among entities within a member of the USIC, and sharing by the USIC with state and local governments. In general, sharing within USIC is limited by the rules identified above, turf issues, and the ‘‘stovepipe’’ problem. The ‘‘stovepipe’’ problem refers to the process in each discipline—from collection to dissemination—that is like a pipeline, an end-to-end process. The members of the USIC who manage the

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respective collection disciplines are competitors. Sometimes, there is no sharing among different disciplines—the stovepipe problem; sometimes there is no sharing among different disciplines in the same agency—the stovepipe problem; and, sometimes, different activities within the same discipline do not share— the ‘‘stovepipes-within-stovepipes’’ problem. Since 9/11, the DNI has been given the authority to establish objectives, priorities, and guidance for the USIC to ensure dissemination of analytic products generated by or within the USIC.47 With regard to sharing with state and local governments, the DNI does not have the authority to disseminate information to state government and local government officials and private sector entities pursuant to sections 201 and 892 of the Homeland Security Act of 2002.48 The IRTPA expressly states that the authority of the DNI does not apply to the dissemination of information to state and local governments or to the private sector.49 In the aftermath of 9/11, fusion centers have been enhanced or established to encourage information sharing among members of the USIC (see Chapter 7, State Fusion Centers). This section briefly describes who shares and what is shared. A community-wide fusion center is the National Counterterrorism Center (NCTC)50 in the Office of the Director of National Intelligence. The NCTC identifies, coordinates, and prioritizes counterterrorism intelligence requirements for the USIC.51 The NCTC analyzes and integrates all intelligence acquired by the U.S. government pertaining to terrorism and counterterrorism, except purely domestic counterterrorism information.52 The NCTC also serves as the central and shared knowledge bank on known and suspected terrorists and international terror groups, as well as their goals, strategies, capabilities, and networks of contacts and support.53 It produces reports on terrorism information. Finally, it disseminates transnational terrorism information, including current terrorism threat analysis, across the executive branch. Its mission is also to ‘‘support the Department of Homeland Security, and the Department of Justice . . . to disseminate terrorism information . . . to State and local government officials.’’54 At the FBI, there are three fusion centers. The Strategic Information and Operations Center (SIOC)55 is a crisis-management and informationprocessing center, which has handled major criminal investigations: Manila Air (1995), Oklahoma City (1995), Khobar Towers in Saudi Arabia (1996), U.S. embassies in Kenya and Tanzania (1998), criminal investigations in Kosovo (1999), the Y2K Rollover (1999–2000), Borderbom (1999–2000), and 9/11. The National Joint Terrorism Task Force (JTTF in SIOC) was first formed in 1980 by the FBI in New York. Today, there are 84 JTTFs and 65 of them were formed after 9/11. The JTTFs are locally based investigators, analysts, linguists, SWAT experts, and other specialists from dozens of U.S. law-enforcement and intelligence agencies. The Terrorism Screening Center consolidates more than a dozen watchlists and provides one-stop

Intelligence: The Domestic Arrangements of the United States

shopping for authorities when individuals of concern are detained by police, boarding an aircraft, or entering the United States, among other actions that might provide an opportunity to learn more about that person.56 At the DOD, there are numerous efforts to coordinate the defense intelligence entities. For example, the Defense Counterintelligence Field Activity (CIFA) undertakes department-wide collection, analysis, and production of counterintelligence.57 At DIA, the Joint Staff Intelligence Directorate consists of four fusion centers. The National Military Joint Center (NMJC) provides real-time I&W of breaking situations and serves as the national focal point for crisis intelligence support to military operations. The National Military Intelligence Production Center feeds requirements to the USIC in crisis situations.58 The Joint Analysis Centers coordinate analysis and production of intelligence collected by the service branches and JICs. Finally, the Joint Intelligence Centers produce the finished product. The Joint Intelligence Task Force for Combating Terrorism consolidates national-level all-source terrorism-related intelligence. There is a Joint Military Intelligence Center in every combatant command. In NORTHCOM, the Combined Intelligence Fusion Center (CIFC).59 was reorganized after 9/11. Previously, the center, known as the ‘‘combined intelligence center,’’ provided intelligence and warning analysis for foreign space, missile, and air operations relevant to NORAD and U.S. Space Command. The CIFC is part of the command’s intelligence division and one of many sections providing ‘‘situational awareness’’ to the NORAD and NORTHCOM commanders. It does not collect. CIFC analysts fuse data with information from law-enforcement agencies in an attempt to anticipate threats. At DHS, the Coast Guard has formed fusion centers to cover their AOR. They are the Maritime Intelligence Fusion Center Atlantic and Pacific Area Maritime Intelligence Fusion Center. Summary of the Intelligence Cycle Since 9/11, the definition of ‘‘national intelligence’’ has broadened from foreign intelligence and counterintelligence to include all other sources (HUMINT, SIGINT, IMINT, OSINT, MASINT) involving any matter bearing on national security and homeland security (including threats to people, property, interests, and WMD), collected anywhere and on anyone. This definition covers information to be used in national policymaking. It is broad enough to also include information on criminal investigations and emergency preparedness information collected at the state and local levels. There are several conclusions that can be drawn. First, the thrust of presidential guidance since 9/11 is integration of efforts among national, state, and local governments to develop intelligence, conduct domestic counterterrorism activities, and prepare for another attack. Post-9/11 changes to national laws enable increased domestic collection activities to

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meet these requirements. Collection activities continue to be conducted by members of the USIC, on predominately external targets, outside the United States, employing predominately technological devices. The FBI conducts the domestic collection. Dissemination is encouraged, particularly through the fusion centers, but the new coordinator of the USIC, the DNI, is not permitted to share with state and local governments. So, why are state and local governments and their law-enforcement authorities—those that conduct criminal investigations and emergency preparedness activities—not involved? Organization and Structure of the U.S. Intelligence Community The USIC exists at the national level of government. It was created by the National Security Act and EO 12333, as amended. There are 16 members of the USIC: 1. Director of National Intelligence ([DNI] The Office of the DNI includes the Office of the Deputy) 2. Director of Central Intelligence and the National Intelligence Council (NIC) 3. Central Intelligence Agency 4. National Security Agency 5. Defense Intelligence Agency 6. National Geospatial-Intelligence Agency 7. National Reconnaissance Office 8. Other offices within the Department of Defense for the collection of specialized national intelligence through reconnaissance programs 9. The intelligence and counterintelligence elements of the Army, Navy, Air Force, and Marine Corps 10. Office of National Security, Intelligence, Drug Enforcement Administration 11. Federal Bureau of Investigation 12. Office of Intelligence and Counterintelligence, Department of Energy 13. Bureau of Intelligence and Research of the Department of State 14. Office of Intelligence and Analysis, Department of Treasury 15. Office of Intelligence and Analysis DHS 16. Intelligence and Counterintelligence Elements of the U.S. Coast Guard

Note that its organization and structure makes the USIC a predominately military organization. Given that federal law prohibits close interactions between the military and civil agencies, interaction between the two sectors is not allowed except in special circumstances concerning domestic violence threats. Unlike any other member of the USIC, the intelligence

Intelligence: The Domestic Arrangements of the United States

components of the DOD are involved in all types of intelligence collection— national, foreign, counterintelligence, and military and military related—and all needs of the USIC—current, estimative, critical, and warning. In addition, the DOD intelligence components are involved in all types of uses—strategic, operational, and tactical. Moreover, the DOD is the home of the broadest array of intelligence assets—human and technological. See Appendices F, ‘‘Members of the U.S. Intelligence Community—Legal Authority’’ and G, ‘‘Members of the U.S. Intelligence Community—Descriptions and Chart of Members of USIC Revisited’’ for more details on the Members of the USIC and their legal authority. U.S. Intelligence Budget In October 2008, the Director of National Intelligence, Michael McConnell, announced that the U.S. intelligence budget was $47.5 billion for the National Intelligence Program for fiscal year 2008.60 The amount spent annually on intelligence has been classified, except for two years in the late 1990s.61 The total intelligence budget for FY 1997 was $26.6 billion, and for FY 1998 was $26.7 billion.62 So far, officials have neither released totals since the late 1990s nor ever provided a breakdown of the intelligence budget by agency or activity.63 Since 1995, the federal budget for U.S. intelligence activities has consisted of three programs.64 National Intelligence Program (NIP)65 The National Intelligence Program funds all national intelligence and counterintelligence activities of the government that respond to ‘‘national’’ needs, as opposed to needs of a single department or agency.66 Joint Military Intelligence Program (JMIP) The Joint Military Intelligence Program,67 overseen centrally by the DOD, funds programs that respond to defense-wide intelligence requirements as opposed to the needs of a particular military service.68 The JMIP involves resources from more than one DOD component, users of intelligence data from more than one DOD component, and improves planning, management coordination, and oversight when centralized. Tactical Intelligence and Related Activities (TIARA) TIARA is an aggregation of funding for tactical military intelligence programs managed by the individual services. The TIARA includes those activities outside the National Intelligence Program. In September 2005, the Military Intelligence Program (MIP) was established which includes all the programs from the JMIP and TIARA categories. Now, intelligence spending is divided between the NIP and MIP.69 Table 5.1 shows these three programs, their constituent programs, and the agency that houses each one. The number of programs at DOD funded

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Table 5.1 The USIC Budget: NIP, JMIP, and TIARA Programs NIP

Agency

JMIP

Agency

TIARA

Agency

Consolidated Cryptologic Program (CCP) Central Imagery Office General Defense Intelligence Program (GDIP)

NSA w/ Army, USN, and USAF NGA

Defense Cryptologic Program (DCP)

NSA

NSA w/Army, USN, USAF

Defense Imagery Program (DIP) Defense Mapping, Charting and Geodesy Program (DMCGP) Defense General Intelligence Application Program (DGIAP).

NGA

Tactical Cryptologic Program (TCP) Air Force Intelligence Service Office of Naval Intelligence

NRO, DIA

Programs of the CIA CIA

NGA

DIA

National Reconnais- NRO sance Program

Subcomponent of DGIAP: DIA Defense Air Reconnaissance Program (DARP)

Defense Counterin- DIA w/ Army, USN, USAF telligence Program and the Foreign Counterintelligence Program Naval Security USN Group Command

Subcomponent of DGIAP: ASD for Special Ops/LowDefense Intelligence Counterdrug Program Intensity (DICP) Conflict (DOD) Subcomponent of DGIAP: DIA Defense Intelligence Agency Tactical Program (DIATP)

USAF Army Service

Marine Corps Office of Deputy Chief of Staff for Intelligence (Army) SOCOM Intelligence Division, Marine Corps Intelligence Special Operations Command (SOCOM)

NIP

Agency

JMIP

Department of Energy, the Office of Intelligence

DOE

Department of Justice, the Counterintelligence Division of the FBI. Department of Treasury, the Office of Intelligence Support. Department of State, Bureau of Intelligence and Research CIA Retirement and Disability System

FBI

Subcomponent of DGIAP: NRO Defense Space Reconnaissance Program (DSRP) Subcomponent of DGIAP: ASDC3I Defense Intelligence Special Technology Program (DISTP)

Treasury

State

CIA

Agency

TIARA

Agency

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by the intelligence budget outnumbers the nonmilitary programs. In addition, the satellite and SIGINT programs are expensive. So, the intelligence budget—personnel, assets, resources—can also be considered military. In 2005, Mary Margaret Graham, senior aide to former DNI Director Negroponte, told an industry conference that the U.S. intelligence budget was $44 billion70—a widely reported figure—but an intelligence official told UPI at the time that she was ‘‘significantly wrong.’’ The official would not elaborate or give a more accurate figure. The Baltimore Sun quoted intelligence expert John Pike’s assertion that $44 billion would represent a 50 percent increase over a pre-9/11 figure of $30 billion or so. However, that figure—representing increases of 10 percent a year—seems low to many observers. One complicating factor is the huge, and now seemingly annual, supplemental appropriation bills that the administration dubs ‘‘emergency spending,’’ which often enables spending on intelligence projects.71 Earlier in 2005, the press widely estimated that the total intelligence budget has grown to about $40 billion.72 Some estimate that the NFIP receives over half of the intelligence budget; the JMIP receives over onetenth of the intelligence budget, and the TIARA receives about one-third of the intelligence budget.73 Some press accounts still estimate that the NFIP budget makes up about two-thirds of the total, while others guess that the NFIP budget makes up about half. So a reasonable range would put NFIP at between $20 and $27 billion, JMIP at $5–$7 billion, and TIARA at $12– $15 billion.74 Analysis of the USIC, its membership and budget, shows that it is predominately a military organization. Members of the USIC residing in the Department of Defense predominate in the USIC and, of that community, all are members of the Armed Forces of the United States. Moreover, the members of the military departments and services equal the total number of agencies in the USIC. Second, besides the President, priority is given to the requirements of the military. Third, besides the President, the military is the primary consumer of intelligence. Fourth, the budget estimates that are publicly available seem to indicate that most of the resources and assets of the USIC are in the DOD, specifically, to support the services and the combat-support agencies. For these reasons, the USIC is predominately military.

POST-9/11 EFFORTS TO ACHIEVE INFORMATION SHARING Based on public records, efforts are being made to enable sharing of intelligence between the USIC and state and local law enforcement. These efforts described in this section include: passage of the USA Patriot Act, removing the ‘‘wall’’ between the intelligence and criminal investigation

Intelligence: The Domestic Arrangements of the United States

sides of law enforcement, presidential and congressional actions to facilitate an information-sharing environment between the USIC and state and local governments, and state fusion centers. (Chapter 7 addresses the fusion centers.)

The USA Patriot Act The USA Patriot Act allows prosecutors to share grand jury information obtained in the course of criminal investigations.75 In addition, the USA Patriot Act allows law enforcement to share the contents of wire, oral, or electronic communications or evidence derived therefrom with intelligence authorities.76

The ‘‘Wall’’ In general, the National Security Act of 1947 allows sharing of information between the intelligence community and criminal investigations, notwithstanding any other law.77 A major obstacle to sharing between the USIC and state and local law enforcement agencies was the ‘‘wall.’’ The wall refers to pre-9/11 rules that prohibited sharing information between the intelligence side of law enforcement and the criminal investigations side of law enforcement. The problem the wall sought to rectify originated at the FBI, a member of the USIC and the lead law-enforcement agency in the United States. The rules that developed, however, are applicable at the state and local level where law-enforcement agencies also engage in intelligence activities. Since 9/11, the rules that propped up the wall are now permitting criminal investigations and intelligence activities to shift from ‘‘solving the case’’ to preventing another disaster.78 There are numerous reasons to explain the existence of the wall between the law enforcement or criminal investigations of the FBI and the intelligence activities of the FBI. Arising out of the abuses by the FBI over 40 years ago during the J. Edgar Hoover years, the rules that developed separated the law-enforcement paradigm, which centers on investigations of crimes after the fact and subsequent prosecution under the law, from the intelligence paradigm, which focuses on the prevention of a surprise attack. Thus, law enforcement or criminal investigations and intelligence activities developed into separate and distinct efforts. In 1983, the Levi Guidelines were developed to regulate intelligence collection in the United States and were revised to encourage investigation of potential terrorism. Agents had to walk a fine line between ‘‘suspicion of terrorism’’ and ‘‘suspicion of subversion,’’ as these were reminders of the days when people were arrested for their beliefs, not their acts. So important was this ‘‘brightline’’—between law enforcement and intelligence—that in 1994, due to problems with

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information sharing in the Aldrich Ames case, Attorney General Reno developed procedures to curtail further any information sharing. Another reason for the wall is that each agency derives its authority from a separate and distinct source—intelligence from national security laws and criminal investigations from criminal law. This is significant because information gathered on persons in a criminal investigation is subject to certain protections provided by the Fourth and Fifth Amendments to the U.S. Constitution. Although intelligence collection on U.S. persons is subject to some constitutional protections, generally the standard is lower as was discussed in the ‘‘Collections’’ section. Thus, the prosecution of persons may be compromised if the information offered as evidence is collected as intelligence—lower protection afforded a person—rather than from a criminal investigation. Since 9/11, the 2002 Attorney General Procedures on Intelligence Sharing79 (2002 Procedures) have enabled the FBI and the Criminal Division of the DOJ to share foreign intelligence, counterintelligence, and criminal investigations information.80 The procedures also allow intelligence and law-enforcement officers to share a ‘‘full range of information and advice’’ concerning foreign intelligence and foreign counterintelligence investigations, ‘‘including information and advice designed to preserve or enhance the possibility of a criminal prosecution.’’81 The FISA Court accepted the information-sharing provisions of the new 2002 Procedures. It rejected, however, the DOJ’s position that criminal prosecutors should be permitted to have a significant role in FISA searches and surveillances from start to finish.82 DOJ appealed this piece, and, in the first appeal ever to the FISA Court of Review, it reversed the FISA lower court.83 The FISA Court of Review ruled that FISA permitted the use of intelligence in criminal prosecutions and that coordination between criminal prosecutors and intelligence investigators was necessary for the protection of national security. The Court concluded that, while the FBI had to certify that the purpose of the FISA surveillance was to obtain foreign intelligence information, FISA did not preclude or limit the use of intelligence information in a criminal prosecution.84

Information Sharing Environment The programmatic developments encouraging a terrorism informationsharing environment in the Office of the Director of National Intelligence are enabled by IRTPA, the Homeland Security Act of 2002,85 and presidential guidance. A terrorism ‘‘information-sharing environment’’ means an approach that facilitates the sharing of terrorism information.86 ‘‘Terrorism information’’ means:

Intelligence: The Domestic Arrangements of the United States All information, whether collected, produced, or distributed by intelligence, law enforcement, military, homeland security, or other activities related to— (A) the existence, organization, capabilities, plans, intentions, vulnerabilities, means of finance or material support, or activities of foreign or international terrorist groups or individuals, or of domestic groups or individuals involved in transnational terrorism; (B) threats posed by such groups or individuals to the United States, United states persons, or United states interests, or to those of other nations; (C) Communications of or by such groups or individuals; or (D) Groups or individuals reasonably believed to be assisting or associated with such groups or individuals.87

As a practical matter, the ODNI is the lead organization creating the ISE, specifically the Program Manager of the ISE (PM-ISE).88 The PM-ISE works with the Information Sharing Council.89 The PM-ISE is directed to implement the 11 requirements of the IRTPA90 and the five guidelines for ISE that President Bush issued.91 Guideline 2 directs the PM-ISE to ‘‘develop a common framework for the sharing of information between and among the executive departments and agencies and state, local, and tribal governments, law enforcement agencies, and the private sector.’’92 In November 2006, the PM-ISE issued the ISE Implementation Plan.93 The Plan recognizes fusion centers94 and identifies the objectives related to sharing terrorism information with state, local, and tribal governments. These include:95 1. Sharing information to address terrorism investigations in a manner that protects the information privacy and other legal rights of U.S. citizens. 2. Fostering a culture that recognizes the importance of fusing all crimes and hazards information to identify information that might provide indications of terrorist plots. 3. Supporting efforts to detect and prevent terrorist attacks by maintaining situational awareness of threats, alerts, and warnings. 4. Promoting the compatibility of homeland security strategies and Critical Infrastructure Sector Plans with the ISE to ensure security, resiliency, and prompt restoration of infrastructure operations (e.g. electric power, transportation, telecommunications, etc.) within a region, state, or locality. 5. Working with the federal government to determine the appropriate allocation of funding, capability development, and other resource decisions relating to the sharing of information. 6. Developing training, awareness, and exercise programs to ensure that the ISE is implemented in a way that better enables state, local, and

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The Civilian-Military Divide tribal government (SLT) personnel to recognize and address terrorist strategies, tactics, capabilities, and intent and to effectively manage attendant risks.

INTELLIGENCE AND EMERGENCY PREPAREDNESS Given the definition of intelligence set out by national laws, intelligence, per se, is not collected for emergency preparedness purposes. Information on resources, infrastructure, utilities, hospitals, and so forth is gathered for first responders. CONCLUSION OF CHAPTER 5 The intelligence arrangements of the United States reflect the divided arrangement of the U.S. Constitution. First, the intelligence arrangements are divided by response, i.e., war, crime prevention, and emergency. War is mostly an activity conducted in foreign places by the national government. Intelligence is a war activity conducted by the USIC, which resides in the national level of government. Because war sometimes affects domestic affairs, domestic intelligence activities, then, are predominately an FBI activity. State and local governments are expressly excluded from war activities. Threats are presumed to be foreign, as the legal definition of ‘‘intelligence’’ reveals. This definition in the National Security Act assumes U.S. persons present no threat, that they could not be a threat, that there could be no ‘‘homegrown’’ threat. This definition does not include domestic intelligence collection, thus intelligence collection for the purposes of crime prevention or emergency preparedness purposes would not be included in the legal definition of intelligence. Domestic collection is authorized by FISA and conducted only by the FBI or coordinated for the USIC by the FBI. The information collected is foreign intelligence. Activities of the USIC are set by the President’s requirements and the requirements of the military. Although state and local governments may have input through the Homeland Security Council, the requirements and priorities are directed to the national government audience and not directed at state and local law enforcement. Collection activities are against foreign targets, whether within the United States or not. Dissemination is all at the national level. The organization and structure of the USIC makes it a predominately military organization. This means that federal law precludes interaction between the two sectors except in special circumstances concerning domestic violence threats. The cost of intelligence production from start to finish by the DOD intelligence components is likely the largest part of the U.S. intelligence budget.

Intelligence: The Domestic Arrangements of the United States

The post-9/11 legal changes affect the law-enforcement community at the national level. The tumbling of the wall between intelligence and criminal investigations focused on improved sharing at the FBI. Finally, intelligence is not an issue in emergency preparedness. Since the USIC is predominately a military organization, what does military doctrine have to say about war, homeland security, and intelligence?

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6

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence Since the USIC is predominately a military organization, it is important to know what military doctrine says about war, homeland security, and intelligence. ‘‘Doctrine’’ is defined as ‘‘fundamental principles by which the military forces or elements thereof guide their actions in support of national objectives.’’ It is authoritative but requires judgment in application.1 ‘‘Though neither policy nor strategy, joint doctrine serves to make U.S. policy and strategy effective in the application of U.S. military power.’’2 The acronym that describes the spectrum of army activities is DOTMLPF. It stands for Doctrine, Organization, Training, Material, Leadership, Personnel, and Facilities. In other words, doctrine not only guides action, it is the first step or driver for all U.S. Army activities, expenditures, and operations. There is joint doctrine and there are services doctrines. Joint doctrine is developed by the JCS, and each service’s doctrine is developed by the respective branches. Joint doctrine is referred to as a ‘‘Joint Publication’’ (JP). Army doctrine as a ‘‘Field Manual’’ (FM). Naval doctrine is found in a ‘‘Naval Doctrinal Publication’’ (NDP). Air Force doctrine is in a ‘‘Air Force Doctrine Document’’ (AFDD). The Marine Corps doctrine is in a ‘‘Marine Corps Doctrinal Publication’’ (MCDP). Publications promulgated as ‘‘Marine Corps Warfighting Publications’’ (MCWPs) contain the tactics, techniques, and procedures utilized by the Marine Corps in the prosecution of war or other assigned missions. U.S. Coast Guard doctrine is called a ‘‘Coast Guard Publication’’ (CGP).

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence Table 6.1 Military Doctrine Publications Joint doctrine Army doctrine Naval doctrine Marine Corps doctrine Air Force doctrine U.S. Coast Guard doctrine

Joint Publication Field Manual Naval Doctrine Publication Marine Corps Doctrine Publication Air Force Doctrine Document Coast Guard Publication

JP FM NDP MCDP AFDD CGP

All doctrine, both joint and services, is categorized by series: Series 1–0 Personnel, Series 2–0 Intelligence, Series 3–0 Operations, Series 4–0 Logistics, Series 5–0 Planning, and Series 6–0 C4 Systems. For example, if JP 3–0 is issued, the services know this is operations doctrine. Likewise, if the Army and Marines issue FM 3–24 and MCDP 3–33.5, respectively, the JCS know this is operations doctrine. Doctrinal publications are also categorized as capstone, keystone, and other doctrinal publications. In the hierarchy of joint publications, capstone publications are the top group because they link joint doctrine to national strategy and the contributions of other government agencies, alliances, and coalitions.3 Keystone publications are joint doctrine publications that establish the doctrinal foundation for a series of joint publications in the hierarchy. For example, keystone publications are provided for intelligence support and operations.4 There is also a hierarchy of doctrine.5 Service doctrine must be consistent with joint doctrine;6 if there is a dispute between joint doctrine and service doctrine, joint doctrine prevails. All doctrine flows from JP 1, Doctrine for the Armed Forces of the United States.7 Because it contains principles that influence all joint and service doctrines, its salient features are described below. Additionally, since 9/11, the military has reissued some doctrines and issued new doctrine relevant to that event. First, joint operations doctrine JP 3–0, reissued in September 2006, discusses some new foundation concepts for the Counterinsurgency and homeland security doctrines. Second, after 20 and 25 years respectively, the Army and Marine Corps jointly issued doctrine on counterinsurgency in December 2006. Third, new doctrine on homeland security was initially issued in 2005. Since then, it has been replaced by JP 3–27, Homeland Defense, and JP 3–28, Civil Support. Intelligence doctrine also changed. This chapter will look at the doctrines on operations, counterinsurgency, homeland security, and intelligence.

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The Civilian-Military Divide Table 6.2 Doctrines Discussed in Chapter 6 Doctrine

Title

Date

JP 1

Doctrine for the Armed Forces of the United States Joint Operations

May 14, 2007

JP 3–0

JP 2–0 JP 3–24 (AKA FM 3–24/MCWP 3–33.5) JP 3–26 JP 3–27 JP 3–28

Joint Intelligence Counterinsurgency (COIN)

September 17, 2006 (incorporating change 1, February 13, 2008) June 22, 2007 November 28, 2007

Counterterrorism (CT) Homeland Defense Civil Support

November 14, 2007 July 12, 2007 September 14, 2007

CAPSTONE DOCTRINE: DOCTRINE FOR THE ARMED FORCES OF THE UNITED STATES, JP 18 Because JP 1 is the capstone doctrine for the U.S. Armed Forces, it is important to know what it says about war. JP 1 explains that there are two types of war: traditional war and irregular warfare (IW). The publication sets out principles to guide activities in these operations. The Principles of Joint Operations guide operations. Although the Fundamentals of Joint Warfare do not supersede those principles, they must also be considered in conducting joint operations. Since 9/11, three principles—legitimacy, perseverance, and restraint—were added to reflect the type of war that is being fought today, counterinsurgency. See Appendix H, ‘‘Principles of Joint Operations,’’ for more details on these three principles. In JP 1, Gen. George H. Decker is quoted stating, ‘‘Doctrine provides a military organization with a common philosophy, a common language, a common purpose, and a unity of effort.’’ Unity of effort is described as the result of effective unified actions to achieve national goals. ‘‘Unified action’’ synchronizes, coordinates, and/or integrates joint, single-service, and multinational operations with the operations of other USG agencies, NGO, and IGO (e.g. the United Nations [UN]) and the private sector to achieve unity of effort.9 KEYSTONE DOCTRINE: OPERATIONS, JOINT PUBLICATION 3–0 10 Because JP 3–0 is the keystone doctrine on operations for the U.S. Armed Forces, it is important to understand its general principles as

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

counterinsurgency and homeland security are operations. In addition to war and joint warfare, JP 3–0 introduces a new range of military operations: military engagement, security cooperation, deterrence, crisis response, limited contingency operations, and major operations and campaigns.11 Counterinsurgency12 and emergency management13 activities fall in the range of military operations. These operations are not doctrinally set. For example, counterinsurgency operations could escalate from a security cooperation activity into a major operation or campaign14 and vice versa. Unity of Effort JP 3–0 follows JP 1’s concept of unified action to achieve unity of effort. Unified action is the synchronization, coordination, and/or integration of joint or multinational military operations with the activities of governmental and intergovernmental entities with military operations to achieve unity.15 Intelligence According to JP 3–0, intelligence is a joint function. First, intelligence is fundamental to understanding the operating environment (OE).16 The OE incorporates interrelated systems, for example, political, military, economic, social, information, infrastructure, and others relevant to a specific joint operation without regard to geographic boundaries.17 Second, intelligence is fundamental to designing the military operation to achieve national goals. Third, intelligence is fundamental to providing information needed to realize national goals. See Appendix I, ‘‘The Operational Environment,’’ for more information. THE THREAT: GLOBAL INSURGENCY JP 3–24 asserts that a new kind of insurgency—a global insurgency— exists that seeks to impose revolutionary change worldwide. This threat is Al Qaeda.19 The doctrine recommends a global response that addresses ‘‘the array of linked resources and conflicts that sustain these movements while tactically addressing the local grievances that feed them.’’20 This is new because most insurgencies are local. Yet, this doctrine is not designed to be implemented inside the United States, in fact, this doctrine is expressly a ‘‘full spectrum operations executed overseas.’’21 ‘‘Full spectrum of operations’’ refers to offensive, defensive, stability, and reconstruction operations that are part of overseas operations. Inside the United States, civil support and offensive and defensive operations are permitted in support of homeland security. See Appendix J, ‘‘Full Spectrum of Operations,’’ for more information.

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THE RESPONSE: POLITICAL–MILITARY STRATEGY COIN Is a Civilian–Military Effort According to JP 3–24, insurgency is an organized movement aimed at the overthrow of a constituted government through the use of subversion and armed conflict. Stated another way, an insurgency is an organized, protracted political–military struggle designed to weaken the control and legitimacy of an established government, occupying power, or other political authority while increasing insurgent control. Counterinsurgency is military, paramilitary, political, economic, psychological, and civic actions taken by a government to defeat insurgency.22 This definition of counterinsurgency differs from the traditional notion of war as a national government activity conducted by the national military. First, the nature of an insurgency is that it is a local operation, so a COIN must also be local. COIN, therefore, requires the involvement of many local actors across law-enforcement, political, economic, psychological, and civic arenas. As a local and global COIN, it also may involve multinational and national actors working at the local level. Second, a COIN today requires the participation by the military from the outset rather than as a periodic show of force when diplomatic efforts have temporarily or permanently failed. Today’s military in a COIN would not be considered the ‘‘State Department’s Troops.’’ This means that the military is a full partner in planning and is not subordinate to the political sector. Third, the military alone cannot succeed in a counterinsurgency.23 The doctrine acknowledges that a successful COIN cannot be solely a military effort or solely a political effort. Military forces can compel obedience and secure areas; they cannot achieve the political settlement needed to resolve the situation. Successful COIN is a political–military effort that includes

Table 6.3 Counterinsurgency Doctrine

Number

CounterJP 3–24 insurgency FM 3–24 MCWP 3–33.5

Applicable to

Proponent

Prepared by

U.S. Marine Corps Active Army Army National Guard Army National Guard of the United States U.S. Army Reserve

U.S. Army Combined Training and Arms Doctrine Doctrine Command Director(TRADOC) ate, U.S. Combined Arms Center

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

civilian agencies, U.S. military forces, and multinational forces. It also includes the security forces working with the local population. Thus, the political efforts attack the basis for the insurgency and security forces efforts provide safety, security, and order. Together, they comprehensively approach the host nation’s core problems.24 A historical review of COIN operations reveals that they are more likely to be successful when the military works together with the people at the local level. So, the strategy includes unity of effort through integration of security forces but also, and importantly, the integration of the local civilian population with security forces. Some of the activities of successful COINs include developing COIN doctrine and practices locally; establishing local training centers during COIN operations; soliciting and evaluating local advice; learning about the broader world outside the military; requesting assistance in understanding foreign political, cultural, social, and other situations; and coordinating closely with all levels of government and nongovernmental organizations.25 The political–military strategy, then, means the horizontal integration of civilian and military organizations and the vertical integration of local, state, national, and multinational civilian and military sectors. The integration of civilian and military efforts is, therefore, crucial in COIN.26 For the counterinsurgency, the integration of security forces—military, police, and other security forces—is essential to establish effective command and control while attaining a monopoly on the legitimate use of violence within the society.27 Integration The hallmark of counterinsurgency operations is integration. Even though the military’s primary function is to protect the population, military forces engaged in COIN operations are directed to:28 • Know the roles and capabilities of the United States, IGO, and HN partners. • Include other participants in planning at all levels. • Support civilian efforts. • As necessary, conduct or participate in political, social, informational, and economic programs.

There is nothing new in directing that political objectives guide the military.29 What is new is that, today, commanders also ‘‘must consider how operations contribute to strengthening . . . legitimacy and achieving U.S. political goals.’’30 This means that the political and military aspects of insurgency are so bound together as to be inseparable. Insurgencies have always recognized this, but the West has not. Integration is achieved through unity of command and unity of effort.

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Unity of Command Unity of command is the preferred doctrinal method for achieving unity of effort by security forces.31 The ultimate objective of these arrangements is for military forces, police, and other security forces to establish effective control while maintaining a monopoly on the legitimate use of force.32 In counterinsurgencies, warfighting and policing are dynamically linked. According to doctrine, the purpose of combat operations is to secure peace and the purpose of policing is to maintain the peace. In COIN operations, military forces defeat enemies to establish civil security. Having done so, these same forces preserve it until police forces can assume responsibility for maintaining the civil order. There is a clear difference between warfighting and policing. However, COIN operations require that every unit be adept at both and capable of moving rapidly between the two.33 Eventually, police and military roles should clearly differ. Police should counter crime while the military should address external threats.34 Police in COIN35 The primary frontline COIN force is often the police—not the military. The primary COIN objective is to enable local institutions to perform basic functions and services, including maintaining safety. Therefore, supporting the police is essential.36 Few military units can match a good police unit in developing an accurate human intelligence picture of their AO (area of operation). Because of their frequent contact with populace, police often are the best force for countering small insurgent bands supported by the local populace. In COIN operations, special police strike units may move to different AOs, while patrol police remain in the local area on a daily basis and build a detailed intelligence picture of the insurgent strength, organization, and support.37 In general, a formal relationship must exist between the police and the military.38 This channel for coordination, conflict resolution, and information sharing enables successful COIN operations. Military Support in COIN The U.S. military support role may be to assist the HN military, paramilitary, and police forces conduct(ing) COIN operations, including area security and local security operations. U.S. forces advise and assist in finding, dispersing, capturing, and defeating the insurgent force.39 In contrast to the arrangement between the U.S. military and law enforcement inside the United States, in a COIN operation, the U.S. military work with the police in such operations as arrests, detentions, penal, and justice authority and procedures.40 U.S. military forces are also allowed

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

to support the police in carrying out numerous COIN functions, including the following:41 • • • • • • •

Assisting in the arrest of war criminals Supporting police presence and search patrols Providing logistic support Controlling crowds and urban unrest Detaining suspected felons Securing key facilities Providing advisors to the police

Coordinating Mechanisms for the Military and Police Ideally, national political representatives have leading roles in coordinating the military and the police. As much as possible, the ‘‘coordination and support should exist down to local levels (such as villages and neighborhoods).42 Military and Nonmilitary Relationships The relationships between the military and civilians are usually given in a document, such as a memorandum of agreement or understanding, directing an agency to support an operation.43 In the absence of formal arrangements, military leaders seek to persuade and influence other participants to contribute to COIN objectives.44 In the event the coordinating role falls to the U.S. military, JP 3–24 recommends a few civilian–military integration mechanisms including the National Security Council,45 the Joint Interagency Coordination Group (JIACG) of the DOD,46 a country team,47 and a civil–military operations center (CMOC).48 CMOCs can be established at all levels of command and can coordinate with other militaries and civilian agencies.49 Overall management of a CMOC can be shared between a military commander and civilian leaders.50 Unity of Effort Political considerations are given primacy in COIN operations, and the military supports these efforts. However, in contrast to the civil–military relationships in the United States, which are characterized by subordination of the military to civilian authority, ‘‘the mosaic nature of COIN operations means that lead responsibility shifts among military, civilian, and HN authorities. Regardless, military leaders should prepare to assume local leadership for COIN efforts. The organizing imperative is focusing on what needs to be done, not on who does it.’’51 Countering an insurgency begins with understanding the environment and the forces within it. Gaining an understanding of the environment—the

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insurgents, the population, and the counterinsurgent organizations—is essential to an integrated COIN operation.52 This is a change in the definition of intelligence, from knowledge of the enemy to understanding of the environment. INTELLIGENCE IN COUNTERINSURGENCY 53 Insurgencies are local.54 Counterinsurgency is an intelligence-driven endeavor.55 Effective, accurate, and timely intelligence is essential to the conduct of any form of warfare. This applies especially to counterinsurgency operations; the ultimate success or failure of the mission depends on the effectiveness of the intelligence effort.56 The need for intelligence in war is not new. Intelligence is typically understood to mean knowledge of the enemy. The need for the military, in irregular war, to know about local environments is also not new. In fact, ‘‘the satisfactory solution of problems involving civil authorities and civil populations requires that all ranks be familiar with the language; the geography; and the political, social, and economic factors involved in the country in which they are operating.’’57 This is as true today as in 1940. The new feature is that COIN doctrine focuses on intelligence-driven operations and operations generating intelligence. Intelligence is not just support to decision-makers, not just ‘‘speaking truth to power,’’ but rather it is the operation and the operation is about intelligence. COIN intelligence is inherently local information. The emphasis is on collection; analysis; and dissemination of intelligence on the populace, host nation, and insurgents.58 This is in contrast to the nature of traditional intelligence, which focuses on geopolitical issues that impact U.S. people, territory, and interests. The function of COIN intelligence is to understand the operational environment. This is in contrast to the function of domestic intelligence activities: understanding local environments is considered the province of local police forces. The COIN intelligence effort is the operation; it is not in a supporting role to a military operation as in traditional intelligence activities. Effective intelligence drives effective operations and successful operations generate intelligence.59

The Intelligence Cycle Intelligence in COIN is about people. The U.S. military must understand the people, the government, and the insurgents. Commanders and planners require insight into cultures, perceptions, values, beliefs, interests, and individuals’ and groups’ decision-making processes. These requirements are the basis for collection and analytical efforts.60

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

It follows, then, that intelligence flows from the bottom up rather than from the top down as in more traditional arrangements.61 Moreover, the traditional intelligence cycle phases of collection, analysis, and dissemination are ‘‘synchronized’’ so that these activities occur frequently and feedback is incorporated into operations promptly.62 In the case of a COIN operation, these activities are not only occurring within the military, but also among the other COIN participants. The flow is both up and down between the multinational level and the local level. Unlike the more formal intelligence activities of the USIC, COIN arrangements are dynamic—intelligence drives operations and operations generate intelligence.63 In this regard, collectors and analysts are linked directly and HUMINT—the information gathered from the people, the local population—is the most important source.64 ‘‘HUMINT sources serve as ‘eyes and ears’ on the street and provide an early warning system for tracking insurgent activity.’’65 Moreover, JP 3–24 recommends that soldiers and marines be given daily intelligence collection requirements before they go out on patrol. Intelligence Collaboration66 Intelligence collaboration in a COIN occurs horizontally across sectors and vertically among echelons and other comparable levels. Collaboration and synchronization of the effort between lower- and higher-echelon units and organizations reduces the likelihood of gaps in the intelligence effort.67 Doctrine recommends COIN participants organize intelligence cells or working groups as mechanisms for planning and sharing intelligence.68 The intelligence cells and working groups conduct regular meetings to accomplish the following tasks. • • • • •

Establish and maintain shared situational awareness. Share collection priorities. Deconflict activities and operations. Discuss target development. Share results of operations.

These meetings build mutual trust and understanding of each member’s mission, capabilities, and limitations. Meetings should be coordinated with meetings of other staff cells, working groups, and boards (for example, the targeting board) as part of the command post’s battle rhythm.69 An effective intelligence cell enhances the commander’s knowledge of the enemy, local populace, and friendly forces and agencies operating in the unit’s AO. Incorporating HN representatives (for example, intelligence services, military forces, and local government officials) and multinational partners into the intelligence cell should also be considered to foster teamwork, gain

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insight into the local society, and prepare the host nation to assume the COIN mission when multinational forces depart.70 The USIC provides support in the form of joining the intelligence cells or working groups in the AO.71 Intelligence Preparation of the Battlefield Intelligence preparation of the battlefield (IPB) is the systematic, continuous process of analyzing the threat and environment in a specific geographic area.72 The purpose of IPB is to understand insurgent approaches and tactics so they can be effectively countered. IPB is conducted in four stages: define the OE, describe the effects of the OE, evaluate the threat, and determine the threat course of action. These are described below. Define the OE73 The OE could consist of air, land, sea, and associated adversary, friendly, and neutral systems (political, military, economic, social, informational, infrastructure, legal, and others) that are relevant to a specific joint operation.74 The area of interest can be large and account for various influences that affect the AO, including:75 • • • •

Family, tribal, ethnic, religious, or other links that go beyond the AO; Communication links to other regions; Economic links to other regions; Media influence on the local populace, U.S. public, and multinational partners; and • External financial, moral, and logistic support for the enemy.

At the combatant command level, the area of interest may be global, if, for example, enemy forces have an international financial network or are able to affect popular support within the United States or multinational partners. At the tactical level, commands must be aware of activities in neighboring regions and population centers that affect the population in their AO.76 Describe the Effects of the OE77 Developing an understanding of the OE is critical to the success of operations because analysis will reveal how these factors affect military operations.78 Considerations include: • Civil considerations, with emphasis on the people, history, and HN government in the AO; • Terrain analysis (physical geography), with emphasis on the following, • Complex terrain, • Suburban and urban terrain, • Key infrastructure, and • Lines of communications; and

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

• Weather analysis, focusing on how weather affects the populace’s activities, such as agriculture, smuggling, or insurgent actions.79

In order to evaluate the people, JP 3–24 suggests six sociocultural factors for analysis: society, social structure, culture, language, power and authority, and interests. This analysis may also identify information related to areas, structures, organizations, and events.80 Evaluate the Threat81 The purpose of evaluating the insurgency and related threats is to understand the enemy, enemy capabilities, and enemy vulnerabilities.82 Collecting information on the enemy requires a commonly understood means of defining and describing the enemy. One such means is using the following categories to track and report the insurgents:83 region, insurgent organization, key personalities, insurgent goals, and motivations. Commanders require knowledge of difficult-to-measure characteristics. These may include: • • • • •

Insurgent goals; Grievances insurgents exploit; Means insurgents use to generate support; Organization of insurgent forces; and Accurate locations of key insurgent leaders.

However, insurgents usually look no different from the general populace and do their best to blend with noncombatants. Insurgents may publicly claim motivations and goals different from what is truly driving their actions. Further complicating matters, insurgent organizations are often rooted in ethnic or tribal groups. They often take part in criminal activities or link themselves to political parties, charities, or religious organizations as well. These conditions and practices make it difficult to determine what and who constitutes the threat.84 The following insurgency characteristics are often the most important intelligence requirements and the most difficult to ascertain:85 • Objectives • Motivations • Means of generating popular support or tolerance

Insurgent support activities and capabilities include:86 • • • •

Locations of safe havens Freedom of movement Logistic support Financial support

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The Civilian-Military Divide Table 6.4 Summary of the Discussion on COIN Doctrine Intelligence Activities

Counterinsurgency

Purpose

Nature of intelligence Nature of intelligence effort Requirements

Local information It is the operation

To understand the OE To collect information

Understand the OE  Global links  Local links Culture, values, beliefs, interests, and decision-making processes of population, insurgents, and government Evaluate people, terrain, and weather for impact on military operations.

To drive an operation, an operation will generate more intelligence Identify the issues driving the insurgency

Collection

Analysis

Intelligence Preparation of the battlefield

In evaluating people: analyze society, social structure, culture, language, power and authority, and interests. This analysis may also identify information related to areas, structures, organizations, and events. Define the OE Describe the effects of the OE Evaluate the threat

Determine threat courses of action

Intelligence disciplines

HUMINT

To understand how civil, geographic, and weather considerations influence the conduct of military operations. To influence how soldiers and marines interact with the population.

To understand the enemy, enemy capabilities, and enemy vulnerabilities. To understand insurgent approaches and tactics so that they can be effectively countered.

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence • • • •

Means of communication Ability to train recruits in military or terrorist tactics and techniques Means of collecting intelligence Means of maintaining operations security

Understanding the attitudes and perceptions of the society’s groups is a very important part of understanding the threat. It is important to know how the population perceives the insurgents, the host nation, and U.S. forces. HN and insurgent perceptions of one another and of U.S. forces are also very important. Attitudes and perceptions of different groups and organizations inform decision-making processes and shape popular thinking on the legitimacy of the actors in the conflict.87 Determine Threat Courses of Action88 The purpose of this step is to understand insurgent approaches and tactics so that they can be effectively countered. The first level of analysis is to understand the approach, and the second is creating the tactical course of action to execute the approach. Summary A COIN is an intelligence operation. In this regard, it differs from typical military operations, which rely upon intelligence. A COIN is also a local operation conducted among the population, preferably by police forces, collecting HUMINT. The reason such detailed information is provided on what COIN collectors gather is to contrast it with the type of information the USIC gathers. COIN is focused on understanding the local environment; the USIC is not. Local police forces gather COIN-type information, not the USIC and not the military. The information gathered by a COIN operation is, ideally, shared with the other civilians and military organizations working with, in, and among the population, to get a complete picture of the environment. HOMELAND SECURITY Introduction For several years, Homeland Security, JP 3–26, was the new post-9/11 operations doctrine and presented the DOD role in homeland security. This doctrine, unlike other doctrine, is for the Department of Defense. In general, it restates existing DOD policy and practices with regard to domestic operations. JP 3–26 acknowledged that the country’s approach to security must address external and internal aspects89 and that, thus far, the approach has been bifurcated, with one branch directed at external threats and the other, the justice system, directed at internal threats. Due to the changed

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The Civilian-Military Divide Table 6.5 Homeland Security Doctrine

Number Applicable to

Homeland Security August 2, 2005 (superseded) Homeland Defense July 12, 2007

JP 3–26

JP 3–27

Civil Support JP 3–28 September 14, 2007

Commanders of Combatant commands, Subunified commands, joint task forces Subordinate components of these commands, the services Same

Prepared by

Under the direction of the Chairman of the Joint Chiefs of Staff; NORTHCOM; J-3 Same

environment, it stated that a comprehensive approach is now needed, a unity of effort. Yet, despite this clear articulation of the problem and solution, the doctrine preserved the distinctions of the divided arrangement. The homeland defense (HD) mission defends against external threats and civil support (CS) missions support lead federal agencies in responding to a crisis. Today, the Homeland Security doctrine has been superseded by doctrines on Homeland Defense, JP 3–27, and Civil Support, JP 3-28. The National Strategy for Homeland Security provides a comprehensive framework for ‘‘organizing the efforts of federal, state, local, and private organizations whose primary functions are often unrelated to national security.’’90 The Department of Defense and the Armed Forces of the United States support the National Strategy for Homeland Security through two missions—HD and CS. The one DOD activity that overlaps them both is emergency preparedness (EP). The DOD defines the geographic areas within the framework of homeland security—the forward regions, the approaches, and the homeland. The forward regions are the land, air, sea, and space outside the homeland, for example, Canada and the Pacific Ocean. The approaches are the regions extending from the limits of the homeland to the forward region. This region is not neatly defined and is based on situation-specific intelligence and the threat. The primary actions within the approaches are to locate and keep the threat far from the homeland.91 The homeland is the continental United States, AK, HI, U.S. territories and possessions, and the surrounding territorial waters and airspace. In this region, the goal for the DOD is to defend against and defeat the threat. Operations in the homeland region include air, land, and maritime missions.92

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

Homeland Defense HD is the protection of U.S. sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression or other threats.93 The HD missions are air, land, maritime, and supporting operations for unified actions. Supporting operations and enabling activities include critical defense infrastructure protection when directed, force protection (FP), antiterrorism (AT), intelligence, and information operations. The homeland defense missions are the responsibility of the DOD (NORTHCOM, U.S. Pacific Command, and U.S. Southern Command in their respective AORs. Aerospace warning and aerospace control for North America is the responsibility of NORAD).94 For HD missions, DOD is the lead agency95 in defending against traditional external threats and aggression (e.g., air and missile attack). However, against internal asymmetric, nontraditional threats (e.g., terrorism), DOD may be in support of DHS. When ordered to conduct HD operations within U.S. territory by the President, DOD will coordinate closely with other federal agencies or departments.96 Civil Support 97 CS refers to DOD support to U.S. civil authorities for domestic emergencies, and for designated law enforcement and other activities. DOD resources are provided only when response or recovery requirements are beyond the capabilities of local, state, and federal civil authorities, and when they are requested by a lead federal agency and approved by the Secretary of Defense.98 The CS mission area consists of three categories: • domestic emergencies; • designated law enforcement; and • other activities designed to enhance civil military relations.

Support in Domestic Emergencies DOD support in a domestic emergency is in support of primary or coordinating agencies. The support provided by federal military forces, DOD civilians, contractor personnel, and DOD agencies and components is in response to requests for assistance for major disasters, emergencies, natural disasters, CBRNE events, and manmade disasters.99 Natural disasters include severe weather, fires, and earthquakes. Special Events include such activities as the Olympics, summits, and the World’s Fair. Manmade disasters include CBRNE consequence management, terrorist threats or attacks, and oil spills. Support to Law Enforcement DOD support to law enforcement could be DOD support in continuity of government operations, to protect the

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public health and safety, and also is not limited to support with civil disturbances, border security, postal services, counterterrorism support, counterdrug operations support; maritime security; and loans of equipment, facilities, or personnel to law-enforcement agencies.100 Enhancing Civil Military Relations Examples might include military training exchanges, community relations activities such as marching bands, military lab support, military working dog support, and civilian critical infrastructure protection. 101 The DOD only becomes involved in CS activities if someone requests assistance. There may be instances in which the military immediately responds to civilian requests prior to receiving Secretary of Defense approval. These would include when immediate support is critical to save lives, prevent human suffering, or to mitigate great property damage.102 Commanders or officials acting under immediate response authority may take necessary action to respond, but must advise the National Military Command Center through command channels by the most expeditious means available and seek approval or additional authorizations.103 Emergency Preparedness The EP mission area overlaps with both HD and CS. EP includes those DOD activities undertaken in advance of an emergency to reduce the loss of life and property and to protect the nation’s institutions.104 These activities are an integral part of DOD planning and preparation for supporting homeland security mission areas.105 Command Relationships106 In homeland security missions, either HD or CS, military forces will remain in the chain of command established under the Title 10, Title 32, or state active-duty military chain of command.107 The bottom line is that the President and Secretary of Defense define the circumstances under which DOD would be involved in the HD and CS missions.108 There are many DOD participants involved in homeland security activities. Below are just a few of the roles played by people at the DOD. Secretary of Defense The Secretary of Defense has overall authority for DOD and is the President’s principal advisor on military matters concerning homeland security. Authority for the conduct and execution of the HD mission resides with the Secretary of Defense. For civil support, the Secretary of Defense has the primary responsibility within DOD to provide the overall policy and oversight for CS in the event of a domestic incident.109 The Secretary of Defense retains approval authority for the use of forces, personnel, units, and equipment.

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

Chairman of the Joint Chiefs of Staff Even though the CJCS is not in the chain of command, the CJCS has responsibilities relating to homeland security. These include advising the President and the Secretary of Defense on operational policies, responsibilities, and programs; assisting the Secretary of Defense in implementing operational responses to threats or acts of terrorism; and translating Secretary of Defense guidance into operation orders to provide assistance to the lead federal agency. CJCS ensures that HD and CS plans and operations are compatible with other military plans.110 Commander, U.S. Northern Command The commander of NORTHCOM has specific responsibilities for HD and for assisting civil authorities. NORTHCOM’s mission is to conduct operations to deter, prevent, and defeat threats and aggression aimed at the United States, its territories, and interests within the assigned AOR and, as directed by the President or Secretary of Defense, to provide military assistance to civil authorities including CM operations. The commander of NORTHCOM takes all operational orders from and is responsible to the President through the Secretary of Defense. National Guard111 The National Guard Bureau coordinates between the DOD and the states, territories, and the District of Columbia. When in state status, the NG responds under the governor’s control for CS missions. When federalized by order of the President (under 10 USC), the NG responds the same as active component military forces. Often, the NG in state status is the first military responder to arrive. They are working under the control of the governor. In addition, the adjutant general is also often the state’s Director of Emergency Management. As such, he controls not only state NG, but also manages the state’s civil–military response in support of local governments. Regardless of the legal status of state militias, the NG is also likely to be the first military responder to a CBRNE site. INTERAGENCY RELATIONSHIPS The guidelines for interagency cooperation lead off with ‘‘achieve unity of effort among a mix of federal, state and local agencies.’’112 Whether DOD is the lead federal agency or not, unity of effort is required to obtain interagency cooperation to execute a homeland security mission. The doctrines acknowledge that the myriad capabilities in the Strategy for Homeland Defense and Civil Support Security require coordination and acknowledges that DOD must work closely with such agencies as the Environmental Protection Agency, the U.S. Department of Health and Human Services, Department of Agriculture, GSA, and the American Red Cross.113

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At the national level, the Homeland Security Council is the senior forum for HS issues.114 The Assistant Secretary of Defense for Homeland Defense and America’s Security Affairs is the person responsible at DOD for coordinating all CS missions with other federal agencies and executive departments.115 All combatant commanders have permanently assigned joint interagency coordination groups (JIACGs). JIACGs may include representatives from other federal departments and agencies and state and local authorities, liaison officers from other commands and components, and other support staff.116 THE ROLE OF INTELLIGENCE In civil support, there is an intelligence role in support activities. In CS missions, DOD is not the lead federal agency. Although state and local offices of emergency management gather information and identify resources in the event of an emergency, such information is not called ‘‘intelligence.’’ In no instance would the military be in the role of identifying local resources for use in an emergency. The military is always in a support role. In the event of a terrorist attack, the FBI and state and local governments are the leads. Instances in which DOD provides intelligence support in CS missions include: • In law enforcement’s prevention activities, DOD may provide analytical support to joint terrorism task forces, field intelligence groups, and high-intensity drug trafficking areas HQ.117 • Geospatial intelligence supports civil authorities by delivering visual and data products to rapidly respond to threats, and also providing analytical support.118 • In counterterrorism operations, the FBI coordinates with military criminal investigative services.119 • In those instances when DOD is to provide foreign intelligence or counterintelligence in a CS mission, DOD must coordinate with the FBI.120

JP 3–24 preserves the distinction between external threats and internal threats, their respective responses (HD and CS), and their respective responsibility. DOD is the lead for HD missions and another federal agency is the lead for CS missions. It acknowledges that security of the country requires attention to external and internal threats, and that the changed environment requires a comprehensive approach. Yet, the unity of effort is not apparent.

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

115

Table 6.6 War and Homeland Security (JP 3–24 and FM 3–24/MCDP 3–33.5; JP 3–27; and JP 3.28) War

Homeland Security

Counterinsurgency

Homeland Defense

Civil Support

External Unity of effort DOD lead federal agency

Internal Unity of effort DOD subordinate to another lead federal agency

DOD/military the lead, all national government

Civilian national agencies the lead, all national government

NSC/HSC, all national government

NSC/HSC, all national government

Threat Strategy Meaning

Global/local Unity of effort Civilian–military integration; all organizations that work at the local level Varies—civil, military, both, as required and at different levels If a local arrangement is not workable, then NSC, JCS, other joint mechanisms Global/local operating environment Intelligence operation

Global operating environment

Global operating environment

Land, sea, air, space

Type of Role

As needed

Defense

Help

Part of team to begin with

Ordered by President and/or the Secretary of Defense; if terrorism and inside United States, follow DHS

DOD assistance to civil authorities  domestic emergencies;  designated law enforcement; and  other. Support Incident management  crisis management  consequence management Critical infrastructure protection DOD must be asked for assistance

Command Relationships

Planning

Battlefield

Mission

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JP 2-0, DOCTRINE, JOINT INTELLIGENCE121 This publication is the keystone document of the intelligence series. According to intelligence doctrine, it crosses the range of military operations.122 Some military operations are in a geographical region, some in theater, and others are global. All military operations, including counterinsurgency operations and homeland security, contribute to national security and deterrence.123 This intelligence doctrine preserves the understanding of the definition of intelligence, activities of the USIC, and organization and structure of the intelligence community explained in chapter 5. According to JP 2–0, intelligence serves in a variety of supporting roles in all levels of war.124 At the strategic level of war, national strategic intelligence is produced for the president, Congress, SECDEF and senior military leaders and commanders.125 At the operational level of war, operational intelligence is used primarily by senior military leaders and commanders and subordinate joint force commanders.126 At the tactical level of war, tactical intelligence focuses on combat intelligence, which is used by commanders, planners, and operators for planning and conducting battles, engagements, and special missions.127 According to JP 2–0, intelligence serves a variety of supporting roles in all levels of war. This confirms the earlier analysis that the military community are the primary consumers and producers, and that the collection priorities of the USIC is SMO.128 The purposes of intelligence are to support the commander; to identify, define, and nominate objectives; to support operational planning and execution; to avoid surprise; to assist friendly deception efforts; and to evaluate effects of operations.129 The key actors are the joint force commanders (JFC) who are integral in the planning and conduct of intelligence operations.130 They are the collectors and consumers.131 Intelligence responsibilities are assigned to the USIC, which supports military operations;132 the CJCS who provides direction to the J-2; the J-2 who works with the USIC, DIA, and CJCS; and the chiefs of the Services.133 The intelligence cycle is reflected in the doctrine. Intelligence operations are the wide-ranging activities conducted by intelligence staffs and organizations to provide the commander with accurate and timely intelligence. An important component of

Table 6.7 Joint Intelligence, JP 2–0 Doctrine Joint Intelligence

Number Date JP 2–0 June 22, 2007

Applicable to Prepared by Joint Staff; Combatant JCS Commands; Subunified Commands; Joint Task Forces; Subordinate Components of these Commands; The Services

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence

this undertaking is a systems perspective of the OE.134 (See Appendix I, ‘‘The Operating Environment.’’) It includes identifying centers of gravity, need for all source intelligence and multiple assessments.135 In contrast to a COIN operation, which relies on HUMINT, the technological capabilities of the USIC are to be employed. The advanced technological capabilities of the intelligence apparatus are employed to provide a joint system of command, control, communications, computers, intelligence, surveillance, and reconnaissance capabilities that enable the USIC to support the Joint Forces Command (JFC), subordinate joint commands, and to integrate support from non-defense agencies and NGOs, as needed. In other words, a collaborative intelligence sharing environment would be created. ‘‘It would be capable of coordinating the actions of people, organizations, and resources at great distances among diverse partners, such as allies and coalition partners, OGAs, NGOs, and state and local authorities.’’136, 137 Sharing intelligence with foreign governments is acceptable on an as-needed basis.138 The Joint Intelligence doctrine acknowledges the changed war paradigm, while also acknowledging the need for different kinds of intelligence to address the threat as well as the diversity of partners providing intelligence. Thus it would seem that Joint Intelligence has adapted to COIN doctrine to the extent that the policies, plans, and procedures are in place to coordinate intelligence of the USIC with non-national partners. Moreover, the ODNI and SECDEF are all onboard. Are these factors guarantors of unity of effort? It remains to be seen.

CONCLUSION OF CHAPTER 6 The counterinsurgency doctrine redefines the threat as a global insurgency and redefines the response as requiring a political–military strategy that relies upon integration of civilian and military activities in a unity of effort in intelligence efforts. This mirrors the recommendation of the 9/11 Commission. Yet, this doctrine is to be applied abroad. Counterinsurgency doctrine could not be a domestic counterterrorism program. Likewise, the Homeland Defense and Civil Support doctrines preserve the legal distinctions between foreign or external threats and internal or domestic threats (the primary jurisdiction of DOD and the military in the former and the state and local governments in the latter) and the subordination of the military to lead federal agency in all domestic missions. The intelligence doctrine similarly reflects the design of the Constitution of the United States. Is intelligence doctrine adapting to the new response paradigm recommended by the 9/11 Commission and the COIN doctrine? Yes.

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Table 6.8 Comparison of the Role of Intelligence in COIN: Intelligence, JP 2–0 and Counterinsurgency, JP 3–24, and FM 3–24/MCWP 3–33.5 Doctrinal provisions The operation Purposes of intelligence

Joint Intelligence

Counterinsurgency

All military Support JFC, support operation

Goals

Same

The difference is in the OE

The OE is a systems perspective

Key actors

JFCOM commanders

Intelligence in military operations Intelligence responsibilities

Intelligence supports and enables an operation

Military and civilian Understanding the OE, designing the military operation, providing information Define the OE Evaluate the threat Describe effects on OE Develop course of action The OE is the local environment and the linkages to the external environment All COIN participants, including the security forces Intelligence is the operation

Intelligence cycle

Intelligence operation

Joint intelligence architecture

Military—DIA, NMJIC, CJCS, J-2, chiefs, J-2s in all echelons CMDRs mission is the focal point for all phases

Use all INTs with a reliance on technological capabilities Joint Intelligence Preparation of Battlespace Produce products Centralized planning and decentralized execution, different types of operations for the different levels of war—strategic, operational, tactical J-2

Combatant commands J-2 JIC JTF J-2 JISE Services

All COIN participants

COIN operation is the focal point. There is collection and analysis simultaneously, then dissemination HUMINT is primary and preferred, all others are secondary IPB is recommended

COIN operations are intelligence operations

Intelligence cells or intelligence working groups that include any and all COIN participants

U.S. Military Doctrine on Counterinsurgency, Homeland Security, and Intelligence Table 6.8 (Continued) Communications systems

Integrated workstations File servers Communication links  JWICS  JDISS

COIN participants talk to each other

Is adaptation of COIN doctrine as a domestic counterterrorism program permissible within the United States? No, it would not be permissible. A plain reading of the Constitution of the United States would likely lead one to conclude that intelligence integration as part of a domestic counterinsurgency operation would be impermissible for three reasons. First, such integration would violate the separation of powers principle, which vests the conduct of war, an external and foreign activity, with the President and Congress concurrently. The Constitution expressly places war powers in the national government and excludes the states from this function. Second, such integration of efforts by the country’s security forces in intelligence sharing would be impermissible because it would concentrate government power in violation of federalism. Such concentration is exactly what the founders feared. Although the police powers are shared by the states and the national government, the national government could claim preemption in the area of intelligence and exclude the states. The states cannot embrace a subject confided exclusively to Congress by the Constitution.139 With regard to its war powers, since 9/11 the national government has acted in several areas regarding intelligence—the USA Patriot Act, the IRTPA, and the fusion centers, to name a few actions. Would amendment of Homeland Defense and Civil Support doctrines to allow the military and state and local law enforcement to jointly develop a domestic database of information in the event of a local crisis be permissible within the United States? No, it would not. Generally, the states’ police powers preclude the national government and the military in emergency management except when the governors ask for assistance. A collaborative relationship is not contemplated by the Constitution—in emergencies, the states have primary jurisdiction and the military is there to assist only. In all of these instances, such integration of efforts by civilians and the military would violate the legal and cultural tradition of separation of the military sectors from the civilian sectors. Although military involvement in police activities is not totally prohibited, it is restricted to exceptional circumstances and the working relationship should not be ongoing. There is no fit between the new threat paradigm and the new response paradigm in the military doctrines on COIN, homeland security, and intelligence to respond to the threat.

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7

State Fusion Centers State fusion centers are becoming an integral part of the national government’s approach to intelligence as a means to identify and understand global threats and to prepare responses. State fusion centers are the states’ response to the intelligence failure. Reform of the U.S. intelligence community (USIC) to promote integration is the national response to intelligence failure. The promise of homeland and national security is the fusion of intelligence and information from the state fusion centers and from the USIC. From 2001 to 2007, the states created 58 fusion centers, of which 43 are operational and the balance in the advanced planning stages.1 Initially, these fusion centers were the states’ response to the attacks of September 11, 2001—a way to prevent terrorism and to prepare for major disasters. Today, the fusion centers are this and more. The scope of their activities includes all crime prevention, counterterrorism, and preparedness for all hazards. The participants are law enforcement, intelligence, emergency prepardeness, and the private sector, and include all levels of government and many organizations across government. In 2007, Congress passed and President Bush signed the Implementing the Recommendations of the 9/11 Commission Act, which creates a fusion center initiative and defines ‘‘fusion center’’ almost identical to the definition developed by the states in 2006 in their Fusion Center Guidelines. The National Security Act of 1947 et seq. created a framework in which national security was placed squarely in the national government, the security forces were the military, and intelligence was considered an integral

State Fusion Centers

part of this undertaking. Indeed, the National Security Act is considered the charter for the USIC. Today, global threats—nonstate actors, transnational crimes, global environmental problems—are in need of local and global approaches and responses. Moreover, homeland security is a new component of national security not contemplated in 1947 or thereafter. State fusion centers offer a way into the complex means by which the governments of the United States seek to provide national security in the 21st century.2 The development of the U.S. government response toward intelligence integration—horizontally among the USIC and vertically with the state fusion centers—was driven by Congress and two independent, bipartisan commissions, all of whom called for intelligence reform.3 The evolution of state fusion centers began shortly after 9/11 and continues to this day. The formal beginning of the national response was established in a 2007 congressional act that created the Department of Homeland Security State, Local, and Regional Fusion Center Initiative, and defined ‘‘fusion center.’’ The informal beginning of the national response happened earlier. This section deals with this evolution. The scholarship on state fusion centers is varied. Initially, the literature focused on making the case for the involvement of law enforcement in the mission of homeland security. In the last couple of years, the focus of the literature has shifted from making the case for a law enforcement role in homeland security to an assessment and review of state fusions centers generally. This literature is beyond the scope of this chapter. State fusion centers demonstrate how the United States system of government is designed and also challenge its foundation.

WHAT IS A STATE FUSION CENTER? Fusion centers are ‘‘state-created entities largely financed and staffed by the states,’’4 and there is no one ‘‘model’’ for how a center should be structured. State and local law enforcement and criminal intelligence seem to be at the core of many of the centers. Although many of the centers initially had purely counterterrorism goals, for numerous reasons, they have increasingly gravitated toward an all-crimes and, even broader, all-hazards approach.’’5 2007 Decision Congress defined a fusion center as:6 . . . [A] collaborative effort of 2 or more Federal, State, local, or tribal government agencies that combines resources, expertise, or information with the goal of maximizing the ability of such agencies to detect,

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The Civilian-Military Divide prevent, investigate, apprehend, and respond to criminal or terrorist activity . . .

A fusion center is central to the Department of Homeland Security State, Local, and Regional Fusion Center Initiative. This initiative—among the Secretary of Homeland Security, in consultation with the program manager of the information sharing environment (PM-ISE), the Attorney General, the Privacy Officer of the Department, the Officer for Civil Rights and Civil Liberties of the Department, and the Privacy and Civil Liberties Oversight Board—is to establish partnerships with state, local, and regional fusion centers.7 2006 Decision In April 2006, the Fusion Center Guidelines (Guidelines) were adopted by the U.S. Attorney General. The Guidelines define ‘‘fusion center’’ as a ‘‘collaborative effort of two or more agencies that provide resources, expertise, and information to the center with the goal of maximizing their ability to detect, prevent, investigate, and respond to criminal and terrorist activity.’’8 This definition is identical to the 2007 definition above, except that the 2007 law elaborates on the types of agencies collaborating, i.e. the federal legislation states that they are ‘‘Federal, State, local, or tribal government agencies.’’ It could be interpreted that the ‘‘collaborative effort’’ described in the Fusion Center Guidelines refers to in-state or regional collaboration. The Guidelines further explain:9 A fusion center is an effective and efficient mechanism to exchange information and intelligence, maximize resources, streamline operations, and improve the ability to fight crime and terrorism by merging data from a variety of sources. In addition, fusion centers are a conduit for implementing portions of the National Criminal Intelligence Sharing Plan (NCISP).

2001–2008 Decisions by the States A breakdown of the creation of the fusion centers follows:10 • There are 58 fusion centers; 43 were operational as of September 2007. • The scope of operation was reported by 22 officials to be all crimes or all crimes and counterterrorism, and officials in 19 operational centers said that their scope of operations included all-hazards information (such as that related to public health and safety or emergency response).

State Fusion Centers • The mission statements of 23 of the 36 operational fusion centers involved collecting, analyzing, and disseminating criminal as well as terrorism-related information. • Eleven other fusion centers had missions that involved enhancing, supporting, or coordinating information and intelligence dissemination to both law enforcement and homeland security agencies. • The managing agencies in a majority of the centers were law enforcement entities, such as state police or state bureaus of investigation. • At least 34 of the 43 fusion centers had personnel from at least one federal agency assigned to their centers. • At least 12 of the 43 were co-located in an FBI field office or with an FBI task force. • Nineteen of the 43 reported that they had other DHS or DOJ components represented in their centers, such as personnel from Customs and Border Protection; Immigration and Customs Enforcement; Transportation Security Administration; Bureau of Alcohol, Tobacco and Firearms; or Drug Enforcement Administration. • Many fusion centers reported having access to the unclassified networks or systems of DHS and DOJ, such as the Homeland Security Information Network (HSIN) and Law Enforcement Online (LEO), containing, among other things, terrorism-related information. • Products disseminated and services provided varied. Fusion centers reported that they issued a variety of products, such as daily and weekly bulletins on general criminal or intelligence information and assessments that, in general, provided in-depth reporting on an emerging threat, group, or crime.

Conclusion Since 9/11, the ODNI is vested with the responsibility to ‘‘establish policies and procedures to resolve conflicts between the need to share intelligence information and the need to protect intelligence sources and methods.’’ Coordination with state fusion centers seems to be a step towards fulfilling that responsibility.

Intelligence Sharing Numerous actions have been taken to put into place policies, procedures, and plans to implement intelligence sharing by and with state fusion centers. Appendix K, ‘‘Summary of Decisions on Information Sharing,’’ visually displays these actions in a table format. The following text describes these actions in narrative form.

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USA—THE STATES GAO estimates that there are 58 state and local fusion centers of which the GAO contacted 43.11 CRS estimates that there are 40.12

LAW ENFORCEMENT COMMUNITY IN THE USA (LOCAL, STATE, TRIBAL, FEDERAL)13 The following actions and decisions are described by the U.S. Department of Justice as leading to the creation of the Fusion Center Guidelines and their adoption by the U.S. Attorney General in 2006. • In 1998 the Global Justice Information Sharing Initiative (Global) was launched. Global represents 30 groups; it is a self-described ‘‘group of groups,’’ representing more than 30 independent organizations, spanning the spectrum of law enforcement, judicial, correctional, and related bodies. • In the aftermath of 9/11, the International Association of the Chiefs of Police (IACP) sponsored a Criminal Intelligence Sharing Summit in March 2002. • The U.S. Attorney General reached out to key personnel from local, state, tribal, federal, and international justice entities to form the Global Advisory Committee (GAC). GAC’s efforts have direct impact on the work of more than 1.2 million justice professionals and positions Global to impact citizens of the United States, Canada, and beyond. As a Federal Advisory Committee, it advises the U.S. Attorney General on justice information sharing and integration initiatives. • By December 2002, the Global Intelligence Working Group (a subcommittee of Global) had its first meeting. • Less than one year later, in October 2003, the National Criminal Intelligence Sharing Plan was adopted by the U.S. Attorney General. • In May 2004, the Criminal Intelligence Coordinating Council (CICC) was formally established. Its membership includes the Major City Chiefs Association, IACP, and Major County Sheriffs). • Global, the CICC, the U.S. Department of Justice, and the U.S. Department of Homeland Security entered a collaboration that organized a focus group on fusion centers.

2006 Decision In April 2006, the Fusion Center Guidelines (Guidelines) were adopted by the U.S. Attorney General.

State Fusion Centers

U.S. CONGRESS 2001 Decision In the USA Patriot Act, the Congress expanded the regional information sharing system (RISS) to facilitate federal, state, and local law-enforcement responses to terrorist attacks. Specifically, this direction and authorization of $150 million was to protect critical infrastructure. Ostensibly, this does not appear to be connected to fusion centers; however, it is included here because critical infrastructure protection is covered by fusion centers. RISS is a DOJ-BJA initiative, and, like fusion centers, has been supported by them from the beginning.14 2002 Decisions In November, Congress created the Department of Homeland Security. In the same legislation, Congress expressed to the President its sense that sharing homeland security information with state and local personnel could take place with the proper procedures such as security clearances, non-disclosure agreements, and increased use of information-sharing partnerships, such as Joint Terrorism Task Forces of the FBI, the Anti-Terrorism Task Forces of the Department of Justice, and regional Terrorism Early Warning Groups. The Homeland Security Act defined ‘‘state and local personnel’’ to include private sector individuals as well as government and community officials involved in critical infrastructure protection in case of terrorist attack.15 The Act also created the category of ‘‘homeland security information.’’16 In December, the Joint Inquiry concluded its work and issued its findings and recommendations. These are discussed further in Appendix L, ‘‘The Commissions’’. 2004 Decision The Congress introduced the fusion center idea in the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) and directed that state fusion centers become part of the Information Sharing Environment (ISE) being spearheaded by the Office of the Director of National Intelligence (ODNI). Section 1016 states: Congress directed the President to create an ‘‘information sharing environment’’ for sharing terrorism information and to designate the structures to operate the ISE.

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The Civilian-Military Divide The President is to ensure that the ISE provides and facilitates the means for sharing terrorism information among all appropriate Federal, State, local, and tribal entities, and the private sector through the use of policy guidelines and technologies. And ensure that the ISE provides . . . a decentralized, distributed, and coordinated environment that—connects existing systems, where appropriate, provides no single points of failure, and allows users to share information among agencies, between levels of government, and, as appropriate, with the private sector . . .

2007 Decision As described in the section, ‘‘What is a State Fusion Center?,’’ the Implementing Recommendations of the 9/11 Commission Act of 2007 defines ‘‘fusion center’’ and includes among the sharers, all those entities created and acting since 2001.17 In addition to defining ‘‘fusion center’’ it directs the Secretary of Homeland Security to establish a state, local, and regional fusion center initiative and to: 1. create a mechanism for any state, local, or tribal emergency response provider who is a consumer of intelligence to voluntarily provide feedback to DHS; and 2. establish guidelines for fusion centers, including on incorporating emergency response providers and the private sector into all relevant phases of the intelligence and fusion process through full time representatives or liaison relationships.

In April 2008, Charles Allen, Under Secretary for Intelligence and Analysis and Chief Intelligence Officer of the U.S. Department of Homeland Security, explained that:18 My goal is to support the implementation of a National Fusion Center Network working with our colleagues in the FBI, DOJ, DNI and the PM-ISE. What do I mean by that? Let me elaborate. The strategy will connect more than 50 State and major city intelligence centers all working together with the Federal Government in a partnership to protect America. I envision a network of state, local and federal intelligence and law enforcement professionals working together—supported by appropriate tools—to achieve a common goal: protection of the nation. Working together—leveraging Federal as well as State and Local networks; moving relevant information and intelligence quickly; enabling rapid analytic and operational judgments—that is what this National Fusion Center Network is all about. Our ability to move, analyze and act on information is our greatest strength. We must use the network and the information in

State Fusion Centers that network, to push our defensive perimeter outward. That’s what the National Fusion Center Network will do for us. The federal government recognizes that state and local authorities—many of you in this room— have been working at this for years. We in the Federal Government, particularly the National Intelligence Community, must aggressively support you in this endeavor, and become a committed partner as we collaboratively create the National Fusion Center Network Intelligence officers armed with the appropriate tools help to push the edges of the National Intelligence Community out to the states, and bring the power of that community to bear on the problems of the states. In addition, information once only available in cities and states can be used to protect the nation as a whole.

U.S. EXECUTIVE BRANCH The President must deal with national security and, post-9/11, this meant straddling the U.S. intelligence community and creating the homeland security community. 2003 Presidential Decisions The Terrorist Threat Integration Center known as ‘‘TTIC’’ was created shortly after President Bush’s State of the Union Address in 2003. It has since been superseded by the National Counterterrorism Center at the ODNI, both created by the IRTPA of 2004.19 Executive Order 13311 of July 29, 2003, Homeland Security Information Sharing delegates responsibilities from the President to other cabinet members, pursuant to Sec. 892 of the Homeland Security Act of 2002. 2005 Presidential Decisions Presidential Memorandum, June 2, 2005: On June 2, 2005, my memorandum entitled ‘‘Strengthening Information Sharing, Access, and Integration—Organizational, Management, and Policy Development Structures for Creating the Terrorism Information Sharing Environment’’ directed that the PM and his office be part of the Office of the Director of National Intelligence (DNI), and that the DNI exercise authority, direction, and control over the PM and ensure that the PM carries out his responsibilities under IRTPA.

Information Sharing Policy Coordination Committee (ISPCC), June 2, 2005:

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The Civilian-Military Divide On June 2, 2005, I also established the Information Sharing Policy Coordination Committee (ISPCC), which is chaired jointly by the Homeland Security Council (HSC) and the National Security Council (NSC), and which has the responsibilities set forth in section D of Homeland Security Presidential Directive 1 and other relevant presidential guidance with respect to information sharing. The ISPCC is the main day-to-day forum for interagency coordination of information sharing policy, including the resolution of issues raised by the PM, and provides policy analysis and recommendations for consideration by the more senior committees of the HSC and NSC systems and ensures timely responses.

Executive Order 13388, October 25, 2005: Facilitate the work of the PM and the expeditious establishment of the ISE and restructure the Information Sharing Council (ISC), which provides advice concerning and assists in the establishment, implementation, and maintenance of the ISE.

Presidential Memorandum, December 16, 2005:20 Creates guidelines for sharing of terrorism information (as defined in Executive Order 13388 of October 25, 2005). Consistent with section 1016(d) of IRTPA, I hereby issue the following guidelines and related requirements, the implementation of which shall be conducted in consultation with, and with support from, the PM as directed by the DNI: • Guideline 1—Define Common Standards for How Information is Acquired, Accessed, Shared, and Used Within the ISE • Guideline 2—Develop a Common Framework for the Sharing of Information Between and Among Executive Departments and Agencies and State, Local, and Tribal Governments, Law Enforcement Agencies, and the Private Sector • Guideline 3—Standardize Procedures for Sensitive But Unclassified Information • Guideline 4—Facilitate Information Sharing Between Executive Departments and Agencies and Foreign Partners ‘‘There is to be sharing . . . except for those activities conducted pursuant to sections 102A(k), 104A(f), and 119(f)(1)(E) of the National Security Act of 1947.’’ • Guideline 5—Protect the Information Privacy Rights and Other Legal Rights of Americans

State Fusion Centers

2007 Presidential Decision National Strategy for Information Sharing, October 31, 2007. Executive Agencies U.S. EXECUTIVE AGENCIES The FBI September, 2005—The FBI’s fusion center initiative began when FBI Director Mueller directed coordination between the FBI and fusion centers.21 Department of Homeland Security November 2002—Congress created the department through the Homeland Security Act of 2002. The DHS became operational in January 2003. This event set into motion coordination of federal domestic agencies. Among the collaborative efforts was the participation of DHS in the global initiative described above to create the Fusion Center Guidelines. In December 2004, the DHS was directed to create the State, Local, and Regional Fusion Center Initiative by provisions in IRTPA. Federal Emergency Management Agency/Administration Unlike the other situations in which the precipitating event was 9/11, Hurricane Katrina in September, 2005 became the catalyst for FEMA’s participation in state fusion centers. In the process of FEMA reorganization, a Fusion Process Resource Center was created.22 The Office of the Director of National Intelligence In December 2004, IRTPA created ODNI and the Information Sharing Environment. By November 16, 2005, the DNI-ISE-Implementation Plan was created. Appendix K, ‘‘Summary of Decisions on Information Sharing,’’ displays the various government actions taking place since 9/11 to achieve intelligence integration between all levels of government and with the private sector. As the table in that appendix also shows, there is very little overlap, instead, actions are quite clearcut and distinct. To the extent there is coordination, it is the President relentlessly placing coordinating authority in the ODNI for information sharing activities. CONCLUSION OF CHAPTER 7 In analyzing the U.S. governments’ approach to state fusion centers, it is apparent that the eagerly sought after ‘‘unity of effort’’ among the states

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and federal government, the Congress, the President, the USIC, and the private sector is present. State fusion centers are operating in a majority of states, sometimes several in one state. National policies have been promulgated, laws passed, guidelines issued, and plans put forth. These decisions are necessary foundations for government to proceed. The political will of public officials is enviable and unprecedented. Yet, it remains to be seen whether or not the goal of fusion between the state fusion centers and the USIC community will become a reality. Perhaps they have and the success stories are kept secret. This information is not available to the public. In the meantime, we are left to wonder if the following will impede actual fusion: • Historic lack of information sharing among the USIC and between the USIC and the states • Changing nature of intelligence • U.S. system of government that is designed to diffuse power in order to protect individual liberty

8

Planning As the preceding chapters demonstrated, the security of the country is provided through an arrangement divided between the national level of government and the state and local governments. Their respective security forces are divided among the national military, state militias, and state and local law enforcement. Not surprisingly, planning and preparedness for the security function of government also reflect this design. Planning for the country’s security includes national security and homeland security planning, war planning and emergency preparedness planning. Intelligence planning activities, though, are exclusively a national-level activity. Generally, security planning for the country is performed by the National Security Council (NSC).1 It is the coordinating body for the national government. After 9/11, the Homeland Security Council (HSC) was created and, together the NSC and HSC coordinate security planning across the national government. The HSC is responsible for bringing state and local governments into the process. The NSC is the lead agency for national security related to civil–military integration.2 War planning is undertaken by the Department of Defense and through military doctrine by the Joint Chiefs of Staff. Emergency preparedness planning is a federal, state, and local government responsibility.3 At the state and local level, the offices of emergency management conduct preparedness activities; at the national level, they are coordinated by the DHS and FEMA through the NIMS, which engages all levels of government, and the National Response Plan, which coordinates the national government efforts. Intelligence

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activities are coordinated by the Director of National Intelligence, but the DNI has no authority over intelligence sharing with state and local governments. In addition, the statutory definition of intelligence does not include information collected for emergency preparedness activities. The following section briefly reviews the separate planning activities to prevent and prepare for security threats. SECURITY PLANNING With regard to national security planning, the National Security Council4 coordinates policy and planning for the U.S. government. The President presides over the meetings.5 The function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving the national security.6 ‘‘The NSC shall act as the highest Executive Branch entity that provides review of, guidance for and direction to the conduct of all national foreign intelligence, counterintelligence, and special activities, and attendant policies and programs.’’7 In addition, the NSC is ‘‘to consider policies on matters of common interest to the departments and agencies of the Government concerned with the national security, and to make recommendations to the President in connection therewith.’’8 Planning activities to combat terrorism are coordinated at the national level of government. The National Security Act of 1947 created two committees of the NSC: the Committee on Foreign Intelligence9 and the Committee on Transnational Threats.10 Management of the National Security Council varies from administration to administration. ‘‘Each president uses the National Security Council in a way that fits his decision-making style.’’11 The term used to refer to the decisions that the President issues on national security matters varies by administration, but they are generally considered ‘‘presidential directives.’’ The administration of President George W. Bush issued NSPDs to promulgate presidential decisions on national security matters.12 The administration of President Barack Obama has not issued any public directives. NSPD-1,13 the first directive of President Bush, organized the NSC. According to NSPD 1, the NSC consists of the NSC Principals Committee (NSC/PC), the NSC Deputies Committee (NSC/DC), which serves as the senior sub-cabinet interagency forum for consideration of policy issues affecting national security, and the NSC Policy Coordination Committees (NSC/PCCs), which manage the development and implementation of national security policies. The NSC/PCCs provide the main day-to-day forums for interagency coordination of national security policy. Each NSC/

Planning

PCC includes representatives from the executive departments, offices, and agencies represented in the NSC/DC. Among the products of the NSC are the National Security Strategy and other national strategies. With regard to homeland security, policy and planning activities for the U.S. government are coordinated by three post-9/11 entities—the Office of Homeland Security, in the White House; and two advisory bodies—the Homeland Security Council, organized like the NSC; and the Homeland Security Advisory Council, made up of nonfederal government people and organizations. The mission of the Office of Homeland Security is to develop and coordinate the implementation of a comprehensive national strategy to secure the United States from terrorist threats or attacks.14 The functions of this office are to coordinate the executive branch’s efforts to detect, prepare for, prevent, protect against, respond to, and recover from terrorist attacks within the United States.15 The office is located in the Executive Office of the President and is headed by the Assistant to the President for Homeland Security.16 The office works with executive departments and agencies, state and local governments, and private entities to ensure the adequacy of the national strategy for detecting, preparing for, preventing, protecting against, responding to, and recovering from terrorist threats or attacks within the United States and periodically reviews and coordinates revisions to that strategy as necessary.17 With regard to intelligence, the office identifies priorities and coordinate efforts for collection and analysis of information within the United States regarding threats of terrorism against the United States and activities of terrorists or terrorist groups within the United States. The office also identifies, in coordination with the Assistant to the President for National Security Affairs, priorities for collection of intelligence outside the United States regarding threats of terrorism within the United States.18 The HSC19 is responsible for advising and assisting the President with respect to all aspects of homeland security, and serves as the coordinating mechanism for homeland security–related activities of executive departments and agencies and effective development and implementation of homeland security policies.20 Its purpose is in ‘‘securing Americans from terrorist threats or attacks . . . It requires extensive coordination across a broad spectrum of federal, state, and local agencies to reduce the potential for terrorist attacks and to mitigate damage should such an attack occur.21 Organized like the NSC, the HSC consists of the Principals Committee22 in the cabinet, the Deputies Committee23 of sub-cabinet representatives, and the Policy Coordination Committees,24 who coordinate the development and implementation of homeland security policies throughout the federal government and coordinate those policies with state and local government. The HSC/PCCs are the main day-to-day forums for

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interagency coordination of homeland security policy. There are eleven HSC/PCCs. The Homeland Security Advisory Council 25 The HSAC consists of the President’s Homeland Security Advisory Council (PHSAC) and the Senior Advisory Committees (SACs) for Homeland Security. The PHSAC is composed of not more than 21 members appointed by the President.26 The appointed members of the PHSAC are selected from the private sector, academia, professional service associations, federally funded research-and-development centers, nongovernmental organizations, state and local governments, and other appropriate professions and communities.27 The President designates a Chair and Vice Chair from among the appointed members of the PHSAC.28 By Executive Order, the President also established the SACs:29 State and Local Officials; Academia and Policy Research; Private Sector; and Emergency Services, Law Enforcement, and Public Health and Hospitals. Each SAC is generally composed of not more than 17 members selected by the Secretary of Homeland Security. The President may also establish additional SACs as appropriate. The Secretary of Homeland Security convenes both the PHSAC and the SACs.30 The PHSAC meets periodically at the Secretary’s request to provide advice to the President on developing and coordinating the implementation of a comprehensive national strategy to secure the United States from terrorist threats or attacks.

WAR PLANNING Defense Planning at the DOD Every four years, the Secretary of Defense is statutorily required to conduct a comprehensive review of the national defense strategy, force structure, force modernization plans, infrastructure, budget plans, and other elements of the defense program.31 This process is known as the ‘‘Quadrennial Defense Review (QDR).’’ It is conducted in consultation with the CJCS. According to the 2006 QDR, the strategic environment changed on September 11, 2001 from ‘‘post–Cold War’’ to ‘‘post-9/11.’’ War Planning Military doctrine is the starting place for all military activities, including planning. In general, doctrine is built upon military theory, national security policy, and policy of the Secretary of Defense. Military theorists include Clausewitz, Jomini, and Sun Tzu. The President presents national security policy in the National Security Strategy and the National Strategy

Planning Table 8.1 Comparison of Post–Cold War and Post-9/11 Security Environments Post–Cold War

Post-9/11

Nation-state threat Nation-state threat Nation-state v. nation-state war Deterrence

Multiple challenges Networks and nonstate actors State v. in-state group, and globally networked groups and individuals Tailored deterrence for rogue powers, terrorist networks, near-peer competitors Preventive, preemption, proactive 21st century integrated approaches Forces: mobile, expeditionary Forces: fully-equipped, fully-manned (combat ready) Battle-hardened for war

Reactive 20th century processes Forces: static defense Forces: standby forces Forces: battle-ready force (peace) Service and agency intelligence DOD solution

Joint Intelligence Operations Centers Interagency solutions

Source: QDR 2006, pp. 8–10

for Homeland Security. It is further elaborated upon by various strategies that flow therefrom, such as the National Defense Strategy and the National Military Strategy. Doctrine also reflects policy of the DOD, articulated by the Secretary of Defense. The CJCS is responsible for developing doctrine for the joint employment of U.S. Armed Forces.32 There are five steps in developing joint doctrine.33 First Step: The Project Proposal is developed. An operational void is discovered, which doctrine seeks to fill. This void may be discovered by services, CINCs, or the Joint Staff. The JCS, Operational Plans and Interoperability Directorate (J-7) of which the Joint Doctrine Division is a part, validates the requirement with the Services and CINCs. J-7 initiates Program Directives. Second Step: A Program Directive is issued whereby the J-7 formally staffs with the Services and CINCs, which includes scope of project, references, milestones, and who will develop drafts. J-7 then releases the Program Directive to a Lead Agent who can be service, CINC or JCS directorate. Third Step: Two drafts are developed. The Lead Agent selects the Primary Review Authority (PRA) to develop the publication. PRA develops two drafts, which are circulated with services, CINCs, and Joint Staff.

135

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The Civilian-Military Divide

Fourth Step: Approval is obtained by CJCS. Fifth Step: The CINCs use the publication and assess and suggest revisions for it. Between 18 and 24 months following publication, the J-7 Director will solicit a written report from the combatant commands and services on the utility and quality of the pub and the need for any changes. An example of this development process in action is the recent discovery by the JCS of a doctrinal void in IW.34 Prompted by a Secretary of Defense policy statement introducing and describing ‘‘irregular warfare’’ in the 2006 QDR report and the subsequent IW roadmap, the JCS, J-7, commissioned the ‘‘Irregular Warfare Special Study.’’35 Its mandate included identifying current joint doctrinal treatment of IW and its aspects, identifying any joint doctrinal voids concerning IW, proposing courses of action for resolving identified voids, and identifying terminology implications and doctrinal issues related to IW.36 SUMMARY OF WAR PLANNING Military doctrine arises from civilian guidance—the military theorists, national security policy, and policy statements by the Secretary of Defense—which are national government policymakers. There is no input from state and local policy makers and there is no input from state and local law-enforcement officials. U.S. Special Operations Command coordinates counterinsurgency activities. Emergency Preparedness Planning In general, planning for domestic emergencies is decentralized and viewed as the province of the state militias and state and local emergencymanagement offices. Prior to 9/11, FEMA coordinated national-level planning activities. Since 9/11, FEMA is part of the DHS, which is technically responsible. NORTHCOM, a post-9/11 creation, coordinates the military side in such domestic emergencies. For national security emergency preparedness, EO 12656 designates the NSC as the coordinator for emergency preparedness policy, except that the HSC is responsible for administering such policy with respect to terrorist threats and attacks within the United States.37 The order also requires the director of FEMA to serve as an advisor to the NSC on issues of national security emergency preparedness, including mobilization preparedness, civil defense, continuity of government, technological disasters, and other issues, as appropriate.’’38 The federal government coordinates with FEMA as the administrator, a comprehensive emergency preparedness planning system for all hazards.39 With regard to civil defense, including nuclear attack preparedness planning, DHS is subject to oversight by the Secretary of Defense and the

Planning

National Security Council.40 In addition, the Secretary of Defense is to provide the Secretary of Homeland Security with support for civil defense programs in the areas of program development and administration, technical support, research, communications, transportation, intelligence, and emergency operations.41 Since 9/11, critical infrastructure protection is part of the federal government’s emergency-management planning.42 National Plans The DHS is to develop a NIMS, a consistent nationwide approach for federal, state, and local governments to work together to prepare for, respond to, and recover from domestic incidents.43 The NIMS provides all of the country’s first responders and authorities with the same foundation for incident management in terrorist attacks, natural disasters, and other emergencies. The NRP, also to be developed by DHS, is to integrate the current family of federal domestic prevention, preparedness, and response and recovery plans into a single all-discipline, all-hazards plan.44 The NRP describes the policies, planning assumptions, and a concept of operations that guide federal operations following a presidential declaration of a major disaster or emergency. The NRP is coordinated by DHS and FEMA and is the result of agreements between it and other federal agencies. The primary agency for resource support is the GSA. A complimentary directive provides policies on financial, training, exercises, and technical assistance to the federal, state, and local governments.45 According to HSPD-5,46 there is to be a single, comprehensive, and integrated approach to domestic incident management, which includes preventing, preparing for, responding to, and recovering from a terrorist attack, major disaster, or emergency. There are two phases of incident management—crisis management (CrM) and consequences management (CM). • Crisis Management. CrM is predominantly a law-enforcement response and in such cases involves measures to identify, acquire, and plan the use of resources needed to anticipate, prevent, and/or resolve a threat or act of terrorism under federal law. The FBI is the lead federal agency for CrM.47 • Consequence Management.48 CM includes those actions required to manage and mitigate problems resulting from disasters and catastrophes. The lead federal agency for CM is the DHS.49 The responsibility for coordinating the U.S. government response to and recovery from a terrorist attack, major disaster, or emergency is DHS provided certain conditions are met. First, the state and local governments must be overwhelmed and ask for assistance. Second, other federal agencies asked for assistance. Third, there is more than one agency involved. Fourth, the President orders DHS to act.50

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The Civilian-Military Divide

National planning also includes planning for COG and COOP. COG and COOP planning concern ensuring the continuation of the constitutional government of the United States. COOP planning usually includes: line of succession, delegations of authority, alternate facilities and safekeeping of records, operating procedures, and security and communications. The COG program ensures the continued performance of essential functions and support of the President during national security emergencies. There are two laws that relate to COOP and COG activities, EO 12656 and Presidential Decision Directive 67.51 Section 202 of EO 12656 requires that: The head of each Federal department and agency shall ensure the continuity of essential functions in any national security emergency by providing for: succession to office and emergency delegation of authority in accordance with applicable law; safekeeping of essential resources, facilities, and records; and establishment of emergency operating capabilities. PDD 67, a classified document, requires federal agencies to develop Continuity of Operations Plans for Essential Operations. In response to this directive, many federal agencies formed task forces of representatives from throughout each agency who were familiar with agency contingency plans.

The April 1999 ‘‘Federal Response Plan’’ (FEMA 9230.1-PL) required the head of each federal department and agency to ensure the continuity of essential functions in any national security emergency by providing for succession to office and emergency delegation of authority in accordance with applicable law, establishment of emergency operating capabilities, and safekeeping of essential resources, facilities, and records. A Federal Preparedness Circular (FPC-65) provides guidance to federal executive branch departments and agencies for use in developing viable and executable contingency plans for COOP. Intelligence Planning As we saw in chapter 5, the DNI sets priorities, collection activities, and may task the USIC. The DNI is the author of The National Intelligence Strategy of the United States of America released in October 2005. The strategy not only provides the new architecture for management by the DNI, now known as the ‘‘intelligence enterprise,’’ but it also identifies the intelligence priorities of the USIC, which reflect the National Security Strategy. Coordination of counterterrorism planning and activities is conducted by the NCTC, which is located in the Office of the Director of National Intelligence and reports to the President.

9

Implications and Conclusions It remains to be seen whether there is a match between the new threat paradigm and the new response paradigm. The global threat of Al Qaeda cannot be addressed by a unity of effort among the country’s security forces in sharing intelligence because the U.S. constitutional system is designed to separate efforts, thereby diffusing power, not to unify efforts, or concentrate power. The resulting domestic arrangements that divide efforts—the laws and the intelligence activities of the country—reflect this design. In other words, military doctrines reflect the U.S. constitutional design. Although the COIN doctrine recommends a new response paradigm of unity of effort, the doctrine would be difficult to achieve in the United States. This is not to say it is not possible. The intelligence doctrine acknowledges the changed war paradigm. The intelligence doctrine also acknowledges the need for different kinds of intelligence to address the threat. The policies, plans, and procedures are in place to coordinate intelligence. Will these guarantee a unity of effort? There are consequences to the separation of efforts. The first consequence is that a divided arrangement yields an incomplete picture of the operating environment. A divided arrangement coupled with prohibitions on sharing between the military and state and local security forces yields an incomplete picture of the OE, which requires input from all sectors. A second consequence is that the military is unprepared to perform and is ineffective in performing a local intelligence function and domestic emergency preparedness activities. Among the chief concerns of the Armed

140

The Civilian-Military Divide

Forces of the United States are military preparedness and military effectiveness. If the counterinsurgency doctrine were applied within the United States, as a domestic counterterrorism operation, intelligence about the local population and local environment would be needed. It is not effective for the military to perform this function. The military is not trained to do this type of work, so they are not as effective as those who are trained to perform this type of work. As the literature and doctrine discuss and advocate, local intelligence gathering is more appropriately a function of local police forces. Including state and local police in the national intelligence effort would be a step in the right direction. However, since the USIC is predominately a military organization, cooperation and collaboration between the USIC and state and local police would be impermissible. With regard to homeland defense and civil support doctrines, the military are the only security forces that may be ordered to a crisis that occurs inside the United States and ordered to remain. Therefore, it makes sense for them to develop information or intelligence about a locale and area resources prior to the event. The absence of such emergency preparedness activities renders the military unprepared and ineffective. A third consequence includes some odd progeny of a divided arrangement. For example, in order for the United States to comprehensively respond to the attacks of 9/11, the Congress had to authorize the use of force, the President had to declare an emergency, the Attorney General of the United States had to call for criminal investigations. Yet, the security forces of the respective levels of government engaged could not speak with one another. Another example is that although a ‘‘fusion center initiative’’ policy exists, it is not clear whether the national government’s fusion centers and the state governments’ fusion centers are fusing with each other. A fourth consequence includes the paradoxes. For example, on one hand, global communication fosters cohesion but on the other hand, government forces in the United States are not communicating. For example, the COIN doctrine requires integration of civilian and military efforts in intelligence activities at the lowest possible level as a fundamental condition in the strategy to defeat an insurgency. So, the military is doing its job to protect and defend the United States because it developed a response to a global threat, but this response cannot be implemented in the United States. Another paradox is the need for integration of efforts at the same time that U.S. citizens are distrustful of concentrations of government power. Legitimacy is very much an issue and the suggestion of integrating the efforts of all of the country’s security forces would raise this issue. Yet, U.S, citizens are pragmatic. If someone said that in fighting Al Qaeda the military cannot talk to the police, I think the public would be outraged. Moreover, in another paradox associated with integration of efforts, today’s ‘‘war’’ is bigger than the military, bigger than the police forces, so that the provision of security is not solely a military or police effort. In theory, the power of the

Implications and Conclusions

security forces would be diluted by the involvement of other actors concerned with security issues? A fifth consequence is that the planning and preparedness for the security function of government also reflect the constitutional design. Planning for the country’s security includes national security and homeland security planning, war planning, and emergency preparedness planning. Intelligence planning activities, though, are exclusively a national level activity. As the preceding chapters demonstrated, the security of the country is provided through a divided arrangement by the national level of government and the state and local governments, and their respective security forces are divided among the national military, state militias, and state and local law enforcement. Not surprisingly, planning and preparedness for the security function of government also reflect this design. A sixth consequence is how the Constitution of the United States, the holding structure for this country’s democratic processes and political power, seems to be unable to respond to a global threat. Equally stunning is the paradox that much of the power of globalization is locally based yet this local and national structure is focused on threats not local. If arrangements could be made to enable the United States to respond with a unity of effort, it would turn intelligence on its head. First, intelligence is considered a secret activity. If it is not secret, it must not be intelligence.1 Secret collection is a fundamental activity.2 Third, local knowledge is not the target of national collection activities. Rather, ‘‘native knowledge’’ of a group, when gathered by the USIC, is considered covert activity.3 Insurgency and counterinsurgency are cited as examples of collection of native knowledge. The shortcomings of information sharing among the organizations involved in intelligence and the security of the country are well known. The relationships among these organizations since 9/11 are changing and continue to change. No doubt, informal relationships continue and, formally, the DNI is spearheading change. As was discussed in chapter 5, the Information Sharing Implementation Plan, released in November 2006, will facilitate changes. In addition, DNI Director, Mike McConnell, recently announced the ‘‘100 Day Plan for Integration and Collaboration’’ among the USIC.4 This is a plan to address some of the institutional and cultural barriers to information sharing in the USIC.5 In Congress, relationships between the respective intelligence oversight committees and appropriations committees are also changing so that there is greater collaboration. CONCLUSION The new response paradigm—unity of effort—is not permissible inside the United States. Adaptation of counterinsurgency doctrine as a domestic counterterrorism program to enable integration of military and civilian

141

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The Civilian-Military Divide

intelligence efforts at the local level would violate separation of powers, federalism, and the principles of civilian–military separation. The modification of homeland security doctrines to permit the military, the singular organization that can be called in to any crisis in the United States, to collect local information and develop a database of local resources in order to be prepared to respond to a crisis, would be impermissible as a violation of the principle of civilian–military separation and of the Posse Comitatus Act. The overhaul of intelligence doctrine to define intelligence to also include local intelligence, to allow collection by the military for emergency preparedness activities, and to include state and local law-enforcement communities as part of the USIC, would violate separation of powers, federalism, and the principles of civilian–military separation. Policies, plans, and procedures are in place to coordinate intelligence horizontally and vertically. Moreover, there appears to be the political will to achieve unity of effort. Are these factors guarantors of a unity of effort? It remains to be seen.

Appendix A

War Paradigms

Enemy Actors

Purpose

Function

Conduct

Conventional Warfare Military of a nation-state State

Unconventional Warfare Irregular Warfare Civilians Military, civilian, law enforcement, NGOs State and State and nonstate nonstate Nonstate actors, transnationally connected, globally networked Defend soverReplace state Undermine or support eignty including power authority people, territory, interests from external threats Erosion of power, influSecurity and order Disorder, a ence, and will to climate of exercise political collapse authority over an indigenous population By military, conNonstate State, military, nontinuation of polincluding state, and individuals itics by other civilians means, subordination to politics

144

Appendix A

Conventional Warfare External

Unconventional Warfare Irregular Warfare Loci of conflict Internal Internal, external, transnational It is an approach. The Characterization U.S. way of war— Guerilla warresponse requires use annihilation fare—fluid (v. of all elements of the concentration United States’ power, of force), difincluding diplomatic, fuse (v. culmiinformational, econating point), nomic, intelligence, hearts and and law enforcement minds (v. deactivities cisive battle) Strategy—civilian Strategy—ideo- Bigger than DOD and USSOCOM, though logically decision, linked both have a role driven, no to national indistinction terest, defined between and achievable political and outcome, end military, prostate, terminatracted strugtion conditions, gle, intelliexist strategy gence is fundamental Protracted Operations & Operations & Tactics— Operations & Tactics— Military and Tactics—quick speed, inacnonmilitary methods & decisive; cessible bases, Participation by inditechnology and frequent viduals and groups firepower; change not part of military battlefield or police; can be defined; organikinetic as well as zation in large involving activities of formations; sysother government tematic probentities; can be direct lem-solving; ofand indirect fensive, economy of force, maneuver and attrition.

Appendix A

Type

Key Concepts

Conventional Warfare Maneuver and Attrition

Center of gravity, critical vulnerability, force of effort, tempo, commander’s intent

Unconventional Warfare Irregular Warfare There are 10 activities:

Center of gravity

1. Insurgency and COIN (a movement) 2. Terrorism and CT (use of unlawful violence or threat of . . .) 3. Unconventional warfare (a broad spectrum of military and paramilitary operations) 4. Foreign internal defense 5. Information operations 6. SSTR 7. Intelligence 8. TN criminal activities 9. Psychological operations 10. Civil–military operations Center of gravity

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Appendix B

Posse Comitatus Act The Posse Comitatus Act (PCA) states that: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force1 as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Military involvement in law enforcement activities is restricted, but not totally prohibited by the PCA.2 The Constitution and federal statutes establish six exceptions to which the Posse Comitatus Act prohibition does not apply.3 In other words, these are instances when the military and law enforcement can work together. The two constitutional exceptions are based upon the inherent legal right of the U.S. Government to insure the preservation of public order and the carrying out of governmental operations within its territorial limits, by force if necessary.4 The Constitutional exceptions are for emergencies and for protection of federal property. 1. The emergency authority: Authorizes prompt and vigorous federal action, including use of military forces, to prevent loss of life or wanton destruction of property and to restore governmental functioning and public order when sudden and unexpected civil disturbances, disasters, or calamities seriously endanger life and property and disrupt

148

Appendix B normal governmental functions to such an extent that duly constituted local authorities are unable to control the situations.5 2. Protection of federal property and functions: Authorizes federal action, including the use of military forces, to protect federal property and federal governmental functions when the need for protection exists and duly constituted local authorities are unable or decline to provide adequate protection.6

The four statutory exceptions to PCA are insurrection, failure to enforce federal authority, interference with state or federal law, and permissible activities. In all these instances, presidential action, including the issuance of a proclamation calling upon insurgents to disperse and retire peaceably within a limited time, is required.7 The statutory exceptions also allow the President to federalize the State Defense Forces8 and to federalize the National Guard. INSURRECTION ‘‘Federal aid for State governments’’—Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. This provision implements Article IV, section 4, of the Constitution.9 FAILURE TO ENFORCE FEDERAL AUTHORITY ‘‘Use of militia and armed forces to enforce Federal authority’’—Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. This provision implements Article II, section 3, of the Constitution.10 INTERFERENCE WITH STATE AND FEDERAL LAW ‘‘Interference with State and Federal law’’—The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it

Appendix B (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. These provisions implement Article II, section 3, and the 14th Amendment of the Constitution.11 A purpose of PCA is to preclude direct active use of federal troops in aid of execution of civil laws. Prohibited active or ‘‘direct’’ actions include arrests, seizures of evidence, searches of people or buildings, crime investigations, interviewing witnesses, and pursuing escaped prisoners.12 Passive activities of military authorities that incidentally aid civilian law enforcement, however, are not precluded.13 Permissible passive or ‘‘indirect’’ actions include mere presence, preparation of contingency plans for mobilization, advice on tactics or logistics, aerial reconnaissance, delivery of military equipment and supplies, training local law enforcement, and aerial photographic reconnaissance flights.14 See 10 USC 371-380 and DODD 3025.13 Connection to 18 USC § 831—Prohibited transaction involving nuclear materials cites PCA, allowing the U.S. Attorney General to request assistance from DOD in event of an ‘‘emergency situation’’ (defined) and provided military preparedness is not adversely affected. ‘‘Assistance’’ includes arrests, searches, and seizures.

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Appendix C

Requirements: National Security Strategies

National Security Strategy of the United States of America March 2006 http://georgewbush-whitehouse.archives.gov/nsc/nss/2006 Accessed July 21, 2009 National Strategy for Homeland Security of the United States of America July 16, 2002, October 2007 www.dhs.gov/xabout/history/publication_0005.shtm Accessed July 21, 2009 National Strategy to Combat Weapons of Mass Destruction December 2002 www.CFR.org Accessed July 21, 2009 National Strategy for Combating Terrorism September 2006 www.CBSnews.com Accessed July 21, 2009

152

Appendix C

National Money Laundering Strategy 2007 www.fincen.gov Accessed July 21, 2009 National Drug Control Strategy 2009 www.whitehousedrugpolicy.gov/publications/policy/ndcs.html Accessed July 21, 2009 The National Strategy to Secure Cyberspace February 2003 www.dhs.gov Accessed July 21, 2009 National Defense Strategy June 2008 www.defenselink.mil Accessed July 21, 2009

Appendix D

Collection: Terrorism Surveillance Program Status in the Courts and Congress STATUS IN THE COURTS The Terrorism Surveillance Program (TSP) was challenged in several federal courts. First, the ACLU et al v. National Security Agency was dismissed on July 6, 2007. Initially, Judge Anna Diggs Taylor in the U.S. District Court of Detroit rejected the Administration’s claim to broad executive authority and ruled the program illegal on two occasions.1 On February 19, 2008, the U.S. Supreme Court turned down an appeal from the ACLU.2 In a second case, the Ninth Circuit Court of Appeals ruled that an Islamic charity, al-Haramain Islamic Foundation, could not introduce certain evidence because it fell under the government’s claim of state secrets.3 STATUS IN CONGRESS To address the concerns raised by the TSP, Congress passed HR 6304, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, or more simply, the ‘‘FISA Amendments Act of 2008.’’ It became PL 110– 621 in the 100th Congress on July 10, 2008. The law amends FISA by adding a new title concerning additional procedures for acquiring the communications of certain persons outside the United States.4

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Appendix E

Analysis: Intelligence Products

156

Appendix E

Member of USIC CIA CIA

CIA

CIA

CIA

CIA

DIA

DIA

DIA

NSA NGA USAF USAF

U.S. Space Command U.S. Space Command 1

Product President’s Daily Brief (PDB) Vice President’s Supplement (VPS) President’s Terrorism Threat Assessment Economic Executives’ Intelligence Brief (EEIB) Senior Executive Intelligence Brief (SEIB)1 Daily Economic Intelligence Brief (DEIB) Military Intelligence Digest (MID) NMJIC Executive Highlights (EH) Defense Intelligence Terrorism Summary (DITSUM) SIGINT Digest World Imagery Report Air Force Intelligence Daily Air Force Intelligence Morning Highlights Space Intelligence Notes (SPIN) U.S. Space Command Intelligence Report

Sources CIA only

Nature of Intel Current

CIA

Current

CIA

Current

Daily

CIA (Treasury, Commerce, DOE?)

Current

5 days a week

CIA w/ DIA, INR, NSA

Current

6 days a week

CIA

Current

5 days a week

DIA

Current

5 days a week

DIA and NSA

Current

5 days a week

DIA

Current

5 days a week

NSA

Current

NGA

Current

USAF

Current

USAF

Current

5 days a week 5 days a week 5 days a week 5 days a week

USSC

Current

5 days a week

USSC

Current

5 days a week

Formerly known as the National Intelligence Digest (NID)

Publication Frequency 6 days a week 6 days a week

Appendix E

Member of USIC FBI

NIC

DIA DIA

DIA DIA DIA DIA NIC

NIC NIC DIA

DIA State-INR

DEA CIA

Product IIR-Intelligence Report

The Warning Watchlist Warning Memorandum Monthly Warning for CINCs Weekly Intelligence Forecast Weekly Warning Forecast Report Quarterly Warning Forecast Annual Warning Forecast Warning Report Watch Condition Change National Intelligence Estimate

Nature of Sources Intel Current According to FBI, every member of USIC produces this daily and feeds into one database, accessible by all USIC Warning

Publication Frequency Daily

NIO for Warning

Warning

As needed

Warning

Monthly

DIA and Commands DIA and Commands

Warning

Weekly

Warning

Weekly

DIA

Warning

Quarterly

DIA

Warning

DIA DIA

Warning Warning

Long term NIC with the members of the USIC, DNI signs off Special Estimates NIC Shorter term NIC NIC In b/w NIE Memorandum and SE DIA Long term Defense Intelligence Estimates Defense IntelliDIA Long term gence Report INR Long term Intelligence Research Report series Narcotics Intelli- DEA Long term gence Estimate Special Intelligence CIA Long term Report (SIR)

Weekly

As needed As needed Infrequently

Ad hoc Ad hoc Infrequently

Infrequently Infrequently

Infrequently Infrequently

157

158

Appendix E

Member of USIC CIA

CIA Periodicals CIA

Product Intelligence Memorandum (IM) Intelligence Report

Nature of Intel Long term

Publication Frequency Infrequently

CIA

Long term

Infrequently

Developments and trends

Weekly

Economic Intelli- CIA gence Weekly

CIA

Terrorism Review

CIA Counterterrorism Center

CIA

International Narcotics Review Proliferation Digest

CIA Crime and Narcotics Center CIA Nonproliferation Center INR

Bi-weekly

DEA

Monthly

DEA

Quarterly

USAF

Weekly

USSC

Weekly

CIA

State

Peacekeeping Perspectives DEA Monthly Digest of Drug Intelligence DEA Quarterly Intelligence Trends USAF Air Force Intelligence Weekly U.S. Space USSPACECOM Command Defense Intelligence Space Order of Battle Other Publications CIA World Fact Book CIA Biographic Handbook series

1

Sources CIA

CIA CIA

DIA

DIA Biographic sketches of foreign military leaders

DIA

DIA (or Defense Intellidelegated) gence Reference Document (DIRD series)

Formerly known as the National Intelligence Digest (NID)

Monthly (formerly a weekly) Monthly

Monthly

Reference Biographies of civil and military leaders Biographies of junior and senior military officials Reference, often encyclopedic

Appendix F

Members of the U.S. Intelligence Community—Legal Authority

National Security Act of 1947, as amended 50 USC 401a(A)

EO 12333, as amended

Director of National Intelligence Director of Central Intelligence (DCI) including the Office of the Deputy DCI, the National Intelligence Council (NIC) Central Intelligence Agency In the Department of Defense (DOD) National Security Agency Defense Intelligence Agency

50 USC 401a(B)

Section 3.4(f)(1) Section 1.11

50 USC 401a(C) 50 USC 401a(D)

National Geospatial Intelligence Agency National Reconnaissance Office

50 USC 401a(E) 50 USC 401a(F)

Section 3.4(f)(2) Sections 3.4(f)(3), 1.12(a) Section 3.4(f)(9) Sections 1.12(c), 2.4(f)(4)

Homeland Security Act

EO 13284

2004 Defense Author Act

EO 13355

Intelligence Reform & Terrorism Prevention Act Section 1073

Section 1.5

Name change

Section 6(k)

Section 1073 Section 1073

Other offices within the 50 USC DOD for the collec401a(G) tion of specialized national intelligence through reconnaissance The intelligence ele50 USC ments of the Army, 401a(H) Navy, Air Force, and Marine Corps Memo Drug Enforcement between Administration Attorney (DEA) General and DNI, Feb., 2006 Federal Bureau of Investigation Department of Energy Bureau of Intelligence and Research of the Department of State Office of Intelligence and Analysis, Department of Treasury

50 USC 401a(I)

Sections 1.12(c), 3.4(f)(4)

Sections 1.12(d), 3.4(f)(6)

Sections 1.14, 3.4(f)(6) Sections 1.13, 3.4(f)(6) Sections 1.9, 3.4(f)(5)

50 USC 401a(J)

(Continued)

(Continued) National Security Act of 1947, as amended Elements of the Depart- 50 USC 401a(K) ment of Homeland Security concerned with the analyses of foreign intelligence information DHS–Asst. Secretary for Information Analysis through Undersecretary for Information Analysis and Infrastructure Protection DHS–Analysis of intel- 50 USC 401a(K) ligence information including the Office of Intelligence of the Coast Guard Coast Guard 50 USC 401a(K)

EO 12333, as amended

Section 3.4(f)(8)

Homeland Security Act

Section 201(h)

EO 13284 Sections 17, 18

2004 Defense Author Act

EO 13355

Intelligence Reform & Terrorism Prevention Act

Sections 17, 18

Section 1073

Sec. 3.4(f)(8) (by amendment of EO 13355)

Section 6(k)

Section 1073

Other elements of any 50 USC 401a(L) other department or agency designated by the President, or designated jointly by the DNI and the head of the department or agency concerned

Section 1073

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Appendix G

Members of the U.S. Intelligence Community—Descriptions and Chart of Members of USIC Revisited DIRECTOR OF NATIONAL INTELLIGENCE As the head of the USIC,1 the Director of National Intelligence (DNI) is the principal adviser to the President,2 the National Security Council, and the Homeland Security Council, and oversees and directs the implementation of the National Intelligence Program.3 The position of DNI was created in IRTPA, which amended the National Security Act of 1947. Prior to this, the Director of Central Intelligence, who also served as the director of the Central Intelligence Agency, was head of the USIC. Today, the DNI and the director of Central Intelligence Agency are two separate positions, and there is a prohibition on one person serving in both capacities. The 2004 law limits the appointment of military personnel in the Office of the DNI. Not more than one of either the DNI or the Principal Deputy Director of National Intelligence may be a commissioned officer of the Armed Forces in active status.4 CENTRAL INTELLIGENCE AGENCY Since 9/11, the CIA has gone through many changes. The position of Director of Central Intelligence (DCI) was abolished and the director of the CIA, formerly also serving as DCI, now reports to the new Director of National Intelligence. The focus of CIA activities is HUMINT. EO 12333 describes the activities of the CIA in Section 1.4, and Section 1.7(a).

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DEPARTMENT OF DEFENSE In the Department of Defense (DOD), numerous agencies that are members of the USIC, but the DOD as a whole is not a member of the USIC.5 Members of the USIC in the DOD are6 the National Security Agency; the Defense Intelligence Agency; the National Geospatial-Imagery Agency; the National Reconnaissance Office; and the intelligence elements of the Army, Navy, Air Force, and Marine Corps. They are all members of the Armed Forces of the United States. NATIONAL SECURITY AGENCY The NSA is a member of the USIC, and is a combat-support agency that reports to the Secretary of Defense7 unless otherwise directed by the President or NSC. The NSA has two missions: to provide SIGINT, and to protect U.S. government information systems.8 The Central Security Service conducts collection, processing, and other SIGINT operations.9 The NSA is the only agency that may conduct signals intelligence collection for the U.S. government. Its activities include collection, processing, and dissemination. The NSA consists of a Director, a Headquarters, and such subordinate units,10 elements, facilities, and activities as are assigned to the NSA by the Secretary of Defense. The SIGINT system consists of the NSA, CSS, and Service Cryptologic Elements (SCEs).11 The Director is a member of the military of no less than three-star rank designated by the Secretary of Defense, with the input of the DNI,12 and subject to approval by the President.13 The Director reports to the Secretary of Defense. The Director has a Deputy Director of NSA who is a civilian and a Deputy Chief of CSS who is a member of the military of not less than two-star rank.14 EO 1233315 provides that the responsibilities of the NSA include the establishment and operation of an effective unified organization for SIGINT activities, direct support of military commanders, and collection, processing, and dissemination of SIGINT for national foreign intelligence purposes. DEFENSE INTELLIGENCE AGENCY 16 The DIA is a member of the USIC and a combat-support agency.17 The DIA seems to be the military equivalent of the CIA because it is the home of all DOD HUMINT activities. The DIA also coordinates all DOD intelligence production—collection to dissemination—and coordinates the DOD intelligence budget. The Director is the principal advisor to the Secretary and Deputy Secretary of Defense, the Chairman of the JCS, the Combatant Commands, and USDI.18 The Director is the principal DOD intelligence representative in the national foreign intelligence process,19 and is responsible for coordinating and employing DOD intelligence components’ personnel and resources to satisfy DOD intelligence requirements.20 The Director also operates the

Appendix G

Joint Staff Intelligence directorate (J-2), which responds to the intelligence requirements of the Chairman of the JCS and can task the DIA and other DOD intelligence components to support JCS requirements.21 EO 12333,22 states the DIA’s four responsibilities. The DIA collects, produces, and, through tasking and coordination, provides defense and defense-related intelligence for the Secretary of Defense, the Joint Chiefs of Staff, other Defense components, and, as appropriate, nondefense agencies. It collects and provides military intelligence for national foreign intelligence and counterintelligence products. It coordinates all DOD intelligencecollection requirements. Finally, the DIA provides foreign intelligence and counterintelligence staff support as directed by the Joint Chiefs of Staff. NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY 23 The NGA is a member of the USIC, and a combat-support agency.24 The Director of NGA may be a military person.25 Recommendations for the Director position come from the Secretary of Defense for appointment by the President. The Director of NGA advises the Secretary of Defense, the Deputy Secretary of Defense, the USDI, the Chairman of the JCS, the combatant commanders, and, for national intelligence purposes, the DNI and other federal government officials on imagery, imagery intelligence, and geospatial information. The director also supports the imagery, imagery intelligence, and geospatial requirements of the federal government.26 NATIONAL RECONNAISSANCE OFFICE The NRO is a member of the USIC and a combat-support agency. NRO builds and operates the U.S. government’s reconnaissance satellites. The director of the NRO is the person in charge of U.S. space activities. As such, he or she is not only the director of NRO, but also the Undersecretary of the Air Force, and the Executive Agent for Space.27 Among the priorities of the national-security space efforts are ‘‘integrating space capabilities into national intelligence and warfighting.’’28 EO 1233329 states that the NRO is responsible for research and development, acquisition, launch, deployment, and operation of overhead systems to collect intelligence to support national and departmental missions. Most of the information on NRO activities is classified. THE INTELLIGENCE ELEMENTS OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS 30 The National Security Act of 1947 names the ‘‘intelligence elements of the Army, the Navy, the Air Force, the Marine Corps’’ as members of the USIC. DOD directive 5240.1 elaborates further and names the intelligence elements of the Services, the combatant commands, the reserves, and the DOD:

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Appendix G Army

Navy

Air Force

Combatant Commands Reserves

DOD

The Office of the Deputy Chief of Staff for Intelligence (ODCSINT), U.S. Army31 Army Intelligence and Security Command (INSCOM)32 Office of Naval Intelligence (ONI)33 Naval Intelligence Command (NIC)34 Naval Security Group Command (NSGC)35 The counterintelligence elements of the Naval Security and Investigative Command (NSIC)36 Office of the Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force37 Air Force Intelligence Agency (AFIA)38 Electronic Security Command (ESC), U.S. Air Force39 The counterintelligence elements of the Air Force Office of Special Investigations (AFOSI)40 The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE)41 Intelligence elements of the Active and Reserve components of Military Departments, including the Coast Guard when operating as a service in the Navy42 Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof, when used for foreign intelligence or counterintelligence purposes43 Defense Counterintelligence Field Activity (CIFA)44 DODD 52401 also discusses ‘‘special activities’’45

ARMY MEMBERS OF THE USIC The Department of the Army and the Army are consumers of intelligence. OFFICE OF THE DEPUTY CHIEF OF STAFF FOR INTELLIGENCE The Deputy Chief of Staff of the Department of the Army (G-2)46 is the intelligence officer for the U.S. Army. The G-2 is responsible for policy formulation, planning, programming and budgeting, management, propriety, and overall coordination of the intelligence and CI activities of the Army.47 The G-2 receives guidance and tasking from DIA, and pushes the collection requirements down to Corps level and below. ARMY INTELLIGENCE AND SECURITY COMMAND INSCOM was organized in 1977 and has field stations around the world. In addition to conducting intelligence for military commanders, it

Appendix G

also provides information to national decision-makers.48 INSCOM units, located within and outside the United States, support requirements across the operational spectrum. The operations of INSCOM units include: planning and direction, collection, processing, production, and dissemination of all-source, multidiscipline intelligence. INSCOM consists of the National Ground Intelligence Center, which has four subsidiary directorates—the Forces Directorate, Ground Systems Directorate, Imagery Assessments Directorate, and the Foreign Material Exploitation Directorate. INSCOM also consists of Military Intelligence Brigades. They include: 66th MI Group, 300th MI Group, 500th, 513th, 902nd Military Intelligence Group, 308 MI Battalion, 310 MI Battalion, Foreign Counterintelligence Activity, and Special Forces Group. NAVY MEMBERS OF THE USIC The Navy, within the Department of the Navy, includes naval combat and service forces and such aviation as may be organic therein, the Marine Corps, and the Coast Guard when operating as a service of the Department of the Navy.49 OFFICE OF NAVAL INTELLIGENCE ONI is the national production center for global maritime intelligence. Its intelligence activities are collection and analysis. ONI is the only source for intelligence on civil maritime shipping worldwide and emphasizes the national interests associated with weapons proliferation, chemical/biological/nuclear materials transfer, technology transfer, terrorism, drug smuggling, illegal migrant transfer, and the overall national and international concerns regarding ocean environment. It is a consumer and also provides to national consumers. Naval intelligence is under the command of the Director of Naval Intelligence, N-2, who also serves as the staff advisor on intelligence matters to the Chief of Naval Operations. The N-2 wears two hats—the N-2 is Director of ONI and also oversees the operations of the Naval Security Group (NSG). NAVAL INTELLIGENCE COMMAND No public information is available. NAVAL SECURITY GROUP COMMAND The NSGC engages in SIGINT collections. Its program, ECHELON, is described as a global surveillance network that intercepts and processes the world’s communications.

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THE COUNTERINTELLIGENCE ELEMENTS OF THE NAVAL SECURITY AND INVESTIGATIVE COMMAND No public information is available. AIR FORCE MEMBERS OF THE USIC The Department of the Air Force and the Air Force are consumers of intelligence. The Department and the Air Force also conduct intelligence activities and produce intelligence. OFFICE OF THE ASSISTANT CHIEF OF STAFF, INTELLIGENCE, U.S. AIR FORCE No public information is available. AIR FORCE INTELLIGENCE AGENCY The AFIA conducts analysis of adversary air, space, and long-range ballistic missile systems using all-source information. ELECTRONIC SECURITY COMMAND, U.S. AIR FORCE No public information is available. THE COUNTERINTELLIGENCE ELEMENTS OF THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS50 AFOSI possesses national intelligence capabilities by operating a worldwide array of ground-based, airborne, shipborne, and space-based hightechnology sensor systems. THE 650TH MILITARY INTELLIGENCE GROUP, SUPREME HEADQUARTERS ALLIED POWERS EUROPE 51 No public information is available. INTELLIGENCE ELEMENTS OF THE ACTIVE AND RESERVE COMPONENTS OF MILITARY DEPARTMENTS, INCLUDING THE COAST GUARD WHEN OPERATING AS A SERVICE IN THE NAVY52 No public information is available.

Appendix G

OTHER INTELLIGENCE AND COUNTERINTELLIGENCE ORGANIZATIONS, STAFFS, AND OFFICES OR ELEMENTS THEREOF, WHEN USED FOR FOREIGN INTELLIGENCE OR COUNTERINTELLIGENCE PURPOSES53 DEFENSE COUNTERINTELLIGENCE FIELD ACTIVITY 54 The Secretary of Defense established the Defense Counterintelligence Field Activity (CIFA) in 2002.55 The mission of CIFA is to develop and manage DOD counterintelligence (CI) programs and functions that support the protection of the Department, including CI support to protect DOD personnel, resources, critical information, research and development programs, technology, critical infrastructure, economic security, and U.S. interests against foreign influence and manipulation as well as to detect and neutralize espionage against the Department.56 DODD 52401 also discusses ‘‘special activities.’’57 There is no specific information about these. THE DRUG ENFORCEMENT ADMINISTRATION The newest member of the U.S. intelligence community is the National Security Intelligence Section, within the Intelligence Division of the Drug Enforcement Administration.58 The DEA is located in the U.S. Department of Justice. EO 12333, Sec. 1.7(i) describes its intelligence role. Generally, the mission of the DEA is to enforce the controlled substances laws and regulations. DEA has 86 offices in 62 countries, which constitutes the largest U.S. law-enforcement presence abroad. As a member of the USIC, it will pass to the USIC any counterterrorism or national security information that it obtains during the course of its Title 21 drug enforcement mission.59 FEDERAL BUREAU OF INVESTIGATION The FBI is a member the USIC; the Department of Justice is not. The Attorney General may be invited to attend NSC meetings pertaining to the AG’s responsibilities, and offices in the DOJ have national security and intelligence responsibilities. The Directorate of Intelligence (DI) manages all FBI intelligence activity.60 The DI is part of the National Security Branch. The DI works across all FBI investigations—including counterintelligence, counterterrorism, weapons of mass destruction, and cybercrimes— and in all field offices. The collectors in the FBI are the Counterintelligence Division and the Counterterrorism Division. The analysts are the Counterintelligence Division and the Counterterrorism Division. The FBI collects foreign intelligence and conducts counterintelligence activities.

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‘‘The mission of the Intelligence Program is to optimally position the FBI to meet current and emerging national security and criminal threats.’’61 The very heart of FBI operations lies in our investigations—which serve ‘‘to protect and defend the United States against terrorist and foreign intelligence threats and to enforce the criminal laws of the United States.’’62 EO 12333 authorizes that the FBI will:63 Collect (including through clandestine means), analyze, produce, and disseminate foreign intelligence or counterintelligence in support of national and departmental missions.

When a counterintelligence activity of the FBI involves military or civilian personnel of the DOD, the FBI will coordinate with the DOD. Intelligence assets of the military may be used to assist civil authorities.64 DEPARTMENT OF ENERGY The U.S. Department of Energy (DOE) is responsible for nuclear security.65 The DOE is responsible for the design, development, production, and testing of nuclear weapons. With regard to intelligence priorities, DOE is a player in counterproliferation of WMD. ‘‘DOE plays an integral part in nuclear nonproliferation, countering terrorism and responding to incidents involving weapons of mass destruction. We provide technology, analysis, and expertise to aid the United States government in preventing the spread or use of weapons of mass destruction.’’66 EO 12333 provides that the Secretary of Energy shall: • work with the Department of State and others in the USIC in overtly collecting, analyzing, producing, and disseminating intelligence and information;67 • work with Department of State in overtly collecting information with respect to foreign energy matters; • participate in formulating intelligence collection and analysis requirements where the special expert capability of the Department can contribute;67 and • provide expert technical, analytical and research capability to other agencies within the IC.69

There are three DOE offices concerned with intelligence activities: the Office of Intelligence (IN), the Office of Counterintelligence, and the NNSA Office of Defense Nuclear Counterintelligence (ODNCI).

Appendix G

OFFICE OF INTELLIGENCE Its purpose is to provide for the management of, and assign responsibilities for, the foreign intelligence activities of the DOE. Foreign intelligence information is National Security Information (NSI) relating to the capabilities, intentions, and activities of foreign powers, organizations, or persons that would impact U.S. national security or foreign relations.70 It is responsible for coordination of all DOE intelligence-related activities.71 The Office of Intelligence provides analysis. OFFICE OF COUNTERINTELLIGENCE The OCI develops counterintelligence policy for DOE and NNSA. The CI Program is comprised of the DOE Office of Counterintelligence and the NNSA Office of Defense Nuclear Counterintelligence (ODNCI).72 To ensure that the program operates independent of other DOE organizations, the OCI Director will report directly to the Secretary and the ODNCI Chief will report directly to the NNSA Administrator. Both also will have direct access to all Departmental officials and contractors. The ODNCI Chief also will have direct access to the Secretary.73 NATIONAL NUCLEAR SECURITY ADMINISTRATION Established by Congress in 2000,74 the NNSA is a semi-autonomous agency within the DOE, responsible for enhancing national security through the military application of nuclear energy. According to the NNSA’s FY 2005 Budget request, it had three priorities: maintaining the nuclear stockpile, reducing threat to the United States by an aggressive nonproliferation campaign, and providing nuclear propulsion to the U.S. Navy.75 The Administrator of NNSA has authority over, and is responsible for, all programs and activities of the Administration76 including the management and operations of the nuclear weapons production facilities, the national security laboratories, intelligence, and counterintelligence.77 Specifically, NNSA’s ‘‘national security assets’’ are described as ‘‘nuclear weapons, Special Nuclear Material, or classified materials.’’78 NNSA OFFICE OF DEFENSE NUCLEAR COUNTERINTELLIGENCE The ODNCI works with all the NNSA facilities as they relate to DOE intelligence and counterintelligence offices.79 The OCI Director and ODNCI Chief (jointly) are to maintain liaison with the FBI and other lawenforcement and intelligence agencies and programs regarding CI information, activities, and investigations in their respective areas. The FBI has

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agents and analysts detailed to the DOE.80 DOE has personnel detailed to the FBI’s JTTFs. BUREAU OF INTELLIGENCE AND RESEARCH OF THE DEPARTMENT OF STATE The Department of State is the lead agency for maintaining diplomatic relations with other nations, relations that often determine the need for, and constraints upon, the use of military force through the DOD.81 The Secretary of State is the principal federal officer responsible for international terrorist incidents that take place outside the U.S. territory. The Bureau of Intelligence and Research (INR) is a member of the USIC.82 According to EO 12333,83 the Secretary of State shall: • overtly collect information relevant to United States foreign policy and national security concerns; • disseminate, as appropriate, reports received from United States diplomatic and consular posts; • transmit reporting requirements of the Intelligence Community to the Chiefs of United States Missions abroad; and • support Chiefs of Missions in discharging their statutory responsibilities for direction and coordination of mission activities.

INR is primarily responsible for collection of national intelligence abroad of political, sociological, economic, scientific and technical information. It also conducts analysis. OFFICE OF INTELLIGENCE AND ANALYSIS, DEPARTMENT OF TREASURY According to EO 12333,84 the Secretary of the Treasury shall: • overtly collect foreign financial information; and • participate with the Department of State in the overt collection of general foreign economic information.

OFFICE OF INTELLIGENCE AND ANALYSIS OIA shall be responsible for the receipt, analysis, collation, and dissemination of intelligence and counterintelligence information related to the operations and responsibilities of the entire Department, including all components and bureaus of the Department.85 OIA has two primary functions: providing analytical capability on terrorist finance86 and providing

Appendix G

intelligence support to senior Treasury officials on a wide range of international economic and other relevant issues. The OIA is also in charge of intelligence functions of the Office of Terrorism and Financial Intelligence (OTFI). The enforcement side is the Terrorist Financing and Financial Crimes (TFFC) group, which includes the Office of Foreign Assets Control (OFAC), the Financial Crimes Enforcement Network (FINCEN), and the Executive Office for Asset Forfeiture. The OFAC administers and enforces economic and trade sanctions and acts under presidential wartime and national emergency powers as well as authority granted by specific legislation, to impose controls on transactions and freeze foreign assets under U.S. jurisdiction. The intelligence and lawenforcement side is handled by the FINCEN. FINCEN was created in 1990 to support federal, state, local, and international law enforcement by analyzing the information required under the Bank Secrecy Act (BSA), one of the nation’s most important tools in the fight against money laundering. DEPARTMENT OF HOMELAND SECURITY The U.S. Department of Homeland Security was formed in 200287 to bring together 22 federal agencies. According to EO 12333,88 the role of DHS is to conduct, through the United States Secret Service, activities to determine the existence and capability of surveillance equipment being used against the President of the United States, the Executive Office of the President, and, as authorized by the Secretary of the Treasury or the President, other Secret Service protectees and United States officials. No information shall be acquired intentionally through such activities except to protect against such surveillance, and those activities shall be conducted pursuant to procedures agreed upon by the Secretary of the Treasury and the Attorney General. The Directorate of Information Analysis and Infrastructure Protection is a post-9/11 member of the USIC. As of this latest revision (April 15, 2007), the DHS is providing no information on the Directorate for Information Analysis and Infrastructure Protection. U.S. COAST GUARD The Coast Guard is a member of the intelligence community89 and a part of the DHS,90 though in a war or when the President directs, it operates as a service of the Navy.91 The Coast Guard has a national defense role, a homeland security mission, and a law-enforcement function. In its national defense role, it supports military CINCs. Four major national-defense missions are assigned to the Coast Guard. These missions include:92 maritime intercept operations, deployed port operations/security and defense, peacetime engagement, and environmental defense operations. The Coast Guard Intelligence

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Coordination Center (CGICC) collects and analyzes, produces, and disseminates intelligence. With a Coast Guard perspective to support U.S. policy makers and operations, the CGICC is co-located with the ONI at the National Maritime Intelligence Center in Suitland, Maryland. The CG also manages the Maritime Intelligence Fusion Centers, which are responsible for SIGINT, IMINT, MIST, HUMINT collection, integration, and analysis. Since the CG possesses a military and law-enforcement mission, it gathers military and law-enforcement information. The fusion centers are: Maritime Intelligence Fusion Center Atlantic93 and Pacific Area Maritime Intelligence Fusion Center. The CG also enables Field Intelligence Support Teams (FISTs) in key ports who are responsible for collection and first order analysis in coordination with federal, state, and local enforcement and Intel agencies. Table 5–1 shows the members of the USIC, with their intelligence components. An analysis of the USIC membership reveals that the USIC is predominately military. By this I mean several things. Most of the intelligence community resides in the DOD, and they are all considered the Armed Forces of the United States. The four agencies—DIA, NGA, NRO, NSA— are combat-support agencies which means they employ military personnel and civilian personnel to support the military, and four are the services which contain multiple intelligence offices. In addition, there are five combatant commands—INSCOM, SHAPE, NIC, NSGC, and ESC—that are military and strictly intelligence operations. The combination of organizations and assets, including personnel and resources, lead to the conclusion that the membership of the USIC is predominately military.

The U.S. Intelligence Community—Revisited Member Director of National Intelligence Office of the Director of National Intelligence

By Statute Yes

By Directive or Other Order

Yes

In ODNI:  The National Intelligence Council  The National Counterintelligence Executive (NCIX)  The National Counterterrorism Center (NCTC)  The National Counterproliferation Center (NCPC)

Central Intelligence Agency In the Department of Defense National Security Agency

Yes No

By DOD Directive94

Yes

Yes, combat-support agency Central Security Service

Appendix G Defense Intelligence Agency

National GeospatialIntelligence Agency (NGA, formerly National Imagery and Mapping Agency [NIMA]) National Reconnaissance Office Other offices within the Department of Defense The intelligence elements of the Army, the Navy, the Air Force, the Marine Corps

Yes

Yes, combat-support agency

Yes

Directorate for Intelligence Operations  Defense HUMINT Service Directorate of Intelligence Production Defense Intelligence Analysis Center Armed Forces Medical Intelligence Center Missile and Space Intelligence Center Central MASINT Office Yes, combat-support agency

Yes

Yes, combat-support agency

Yes Yes

Yes

In the Army: The Office of the Deputy Chief of Staff for Intelligence (ODCSINT) Army Intelligence and Security Command (INSCOM), which consists of the National Ground Intelligence Center, which has four subsidiary directorates:  Forces Directorate  Ground Systems Directorate  Imagery Assessments Directorate  Foreign Material Exploitation Directorate INSCOM also consists of Military Intelligence Brigades. They include:  66th MI Group  300th MI Group  500th, 513th, 902nd Military Intelligence Group  308 MI Battalion  310 MI Battalion  Foreign Counterintelligence Activity  Special Forces Group

(Continued)

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(Continued) Member

By Statute

In the Department of Justice The Federal Bureau of Investigation

No

Drug Enforcement Administration Department of Energy

By Directive or Other Order In the Navy: Office of Naval Intelligence (ONI) Naval Intelligence Command (NIC) Naval Security Group Command (NSGC) The counterintelligence elements of the Naval Security and Investigative Command (NSIC) In the Air Force: Office of the Assistant Chief of Staff, Intelligence (OACSI), U.S. Air Force Air Force Intelligence Agency (AFIA) Electronic Security Command (ESC), U.S. Air Force The counterintelligence elements of the Air Force Office of Special Investigations (AFOSI) Other: The 650th Military Intelligence Group, Supreme Headquarters Allied Powers Europe (SHAPE) Intelligence elements of the Active and Reserve components of Military Departments, including the Coast Guard when operating as a service in the Navy Other intelligence and counterintelligence organizations, staffs, and offices, or elements thereof, when used for foreign intelligence or counterintelligence purposes Defense Counterintelligence Field Activity (CIFA)

Yes

National Security Division Intelligence Directorate Counterterrorism Division Counterintelligence Division

Yes

Office of Intelligence95 Office of Counterintelligence96 NNSA Office of Defense Nuclear Counterintelligence (ODNCI)97

Appendix G Member Bureau of Intelligence and Research of the Department of State In the Department of Treasury Office of Intelligence and Analysis, Department of Treasury

In the DHS The elements concerned with the analyses of foreign intelligence information Information Analysis and Infrastructure Protection Office of Intelligence of the U.S. Coast Guard U.S. Coast Guard

By Statute Yes

By Directive or Other Order

No Yes

Office of Intelligence Analysis  Office of Terrorism and Finance Intelligence  OFAC  FINCEN

No Yes

Yes

Yes Yes

CG Intelligence Coordination Center (CGICC)-co-located with Office of Naval Intelligence Maritime Fusion Centers  Atlantic  Pacific

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Appendix H

Principles of Joint Operations The Principles of Joint Operations include the Principles of War: objective, offensive, mass, economy of force, maneuver, unity of command, security surprise, and simplicity. They also include other principles: restraint, perseverance, and legitimacy.1 1. Objective The purpose of the objective is to direct every military operation toward a clearly defined, decisive, and attainable objective. 2. Offensive The purpose of an offensive action is to seize, retain, and exploit the initiative. 3. Mass The purpose of mass is to concentrate the effects of combat power at the place and time to achieve decisive results. 4. Economy of Force The purpose of economy of force is to allocate minimum essential combat power to secondary efforts. 5. Maneuver The purpose of maneuver is to place the enemy in a position of disadvantage through the flexible application of combat power. 6. Unity of Command The purpose of unity of command is to ensure unity of effort under one responsible commander for every objective.

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Appendix H 7. Security The purpose of security is to never permit the enemy to acquire unexpected advantage. 8. Surprise The purpose of surprise is to strike the enemy at a time or place or in a manner for which it is unprepared. 9. Simplicity The purpose of simplicity is to prepare clear, uncomplicated plans and concise orders to ensure thorough understanding. 10. Restraint The purpose of restraint is to limit collateral damage and prevent the unneccessary use of force. 11. Preserverance The purpose of perseverance is to ensure the commitment necessary to attain the national strategic end state. 12. Legitimacy The purpose of legitimacy is to develop and maintain the will necessary to attain the national strategic end state.

Appendix I

The Operational Environment UNDERSTANDING THE OPERATIONAL ENVIRONMENT a. General. Factors that must be considered when conducting joint operations extend far beyond the boundaries of the JFC’s assigned operational area. The JFC’s operational environment is the composite of the conditions, circumstances, and influences that affect the employment of capabilities and bear on the decisions of the commander. It encompasses physical areas and factors (of the air, land, maritime, and space domains) and the information environment. Included within these are the adversary, friendly, and neutral systems that are relevant to a specific joint operation. Understanding the operational environment helps commanders understand the results of various friendly, adversary, and neutral actions and how this impacts achieving the military end state. b. Physical Areas and Factors. (1) Physical Areas. The pertinent physical areas in the operational environment include the assigned operational area (discussed in paragraph 5 above) and the associated areas of influence and interest described below. Designation of the areas of influence and interest help

Source: Joint Publication 3-0, Joint Operations, Chapter II-Fundamentals of Joint Operations, Section 6, pp. II-2 to II-24. Dated September 17, 2006, incorporating Change 1, February 13, 2008.

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Appendix I commanders and staffs order their thoughts during both planning and execution. (a) An area of influence is a geographic area in which a commander can directly influence operations by maneuver or fires capabilities normally under the commander’s command or control. The area of influence normally surrounds and includes the assigned operational area. The extent of a subordinate command’s area of influence is one factor the higher commander considers when defining the subordinate’s operational area. Understanding the command’s area of influence helps the commander and staff plan branches to the current operation that could require the force to employ capabilities outside the assigned operational area. The commander can describe the area of influence graphically, but the resulting graphic does not represent a boundary or other control measure. (b) An area of interest (AOI) is an area beyond the area of influence that contains forces and/or other factors that could jeopardize friendly mission accomplishment. In combat operations, the AOI normally extends into enemy territory to the objectives of current or planned friendly operations if those objectives are not currently located within the assigned operational area. An AOI serves to focus intelligence support for monitoring enemy, adversary, or other activities outside the operational area that may affect current and future operations. The commander can describe the AOI graphically, but the resulting graphic does not represent a boundary or other control measure. (2) Physical Factors. The JFC and staff must consider numerous physical factors associated with operations in the air, land, maritime, and space domains. These factors include terrain (including urban settings), weather, topography, hydrology, electromagnetic (EM) spectrum, and environmental conditions in the operational area; distances associated with the deployment to the operational area and employment of forces and other joint capabilities; the location of bases, ports, and other supporting infrastructure; and both friendly and adversary forces and other capabilities. Combinations of these factors greatly affect the operational design and sustainment of joint operations. c. Information Environment. The information environment transcends the four physical domains and is the aggregate of individuals, organizations, and systems that collect, process, disseminate, or act on information. The actors in the information environment include leaders, decision makers, individuals, and organizations. Resources include the information itself and the materials and systems employed to collect, analyze, apply, or disseminate information. The information environment is where humans and automated systems observe, orient, decide,

Appendix I and act upon information, and is therefore the principal environment of decision-making. The information environment is a pervasive backdrop to the physical domains of the JFC’s operational environment. It extends beyond the operational area to encompass those theater and national capabilities (e.g., systems, databases, centers of excellence, subject-matter experts) that support the JFC’s C2 and decision-making requirements. JFCs leverage these capabilities through the Global Information Grid (GIG)—the globally interconnected, end-to-end set of information capabilities, associated processes and personnel for collecting, processing, storing, disseminating, and managing information on demand to warfighters, policy makers, and support personnel. The three dimensions of the information environment are physical, informational, and cognitive. (1) The physical dimension is composed of the C2 systems and supporting infrastructures that enable individuals and organizations to conduct operations across the air, land, maritime, and space domains. It is also the dimension where physical platforms and the communications networks that connect them reside. This includes the means of transmission, infrastructure, technologies, groups, and populations. (2) The informational dimension is where information is collected, processed, stored, disseminated, displayed, and protected. It is the dimension where C2 of modern military forces is communicated and where commander’s intent is conveyed. It consists of the content and flow of information, and links the physical and cognitive dimensions. (3) The cognitive dimension encompasses the mind of the decision maker and the target audience. This is the dimension in which commanders and staff think, perceive, visualize, and decide. This dimension also is affected by a commander’s orders, training, and other personal motivations. Battles and campaigns can be lost in the cognitive dimension. Factors such as leadership, morale, unit cohesion, emotion, state of mind, level of training, experience, situational awareness, as well as public opinion, perceptions, media, public information, and rumors influence this dimension. For more information on the information environment, refer to JP 3–13, Information Operations. For specific information on the GIG, refer to JP 6–0, Joint Communications System. d. Systems Perspective. (1) Joint operations can benefit by a comprehensive perspective of the systems in the operational environment relevant to the mission and operation at hand. Developing a systems view can promote a commonly shared understanding of the operational environment among members of the joint, interagency, and multinational team, thereby facilitating unified action.

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Appendix I (2) A system is a functionally related group of elements forming a complex whole. A systems perspective of the operational environment strives to provide an understanding of interrelated systems (e.g., political, military, economic, social, information, infrastructure, and others) relevant to a specific joint operation (see Figure II-6), without regard to geographic boundaries. A variety of factors, including planning time available, will affect the fidelity of this perspective. Understanding these systems, their interaction with each other, and how system relationships will change over time will increase the JFC’s knowledge of how actions within a system can affect other system components. Among other benefits, this perspective helps intelligence analysts identify potential sources from which to gain indications and warning, and facilitates understanding the continuous and complex interaction of friendly, adversary, and neutral systems. A systems understanding also supports operational design by enhancing elements such as centers of gravity (COGs), lines of operations (LOOs), and decisive points. This allows commanders and their staffs to consider a broader set of options to focus limited resources, create desired effects, avoid undesired effects, and achieve objectives. See Chapter IV, ‘‘Planning, Operational Art and Design, and Assessment,’’ for more information on the use of a systems perspective in operational design.

Appendix J

Full Spectrum of Operations Offensive operations carry the fight to the enemy by closing with and destroying enemy forces, seizing territory and vital resources, and imposing the commander’s will on the enemy (FM-1, 3–27). Defensive operations counter enemy offensive operations. They defeat attacks, destroying as many attackers as necessary. Defensive operations preserve control over land, resources, and populations. They retain terrain, guard populations, and protect key resources . . . (FM-1, 3–28). Stability and reconstruction operations sustain and exploit security and control over areas, populations, and resources. They employ military capabilities to reconstruct or establish services and support civilian agencies. Stability and reconstruction operations involve both coercive and cooperative actions . . . Stability and reconstruction operations lead to an environment in which, in cooperation with a legitimate government, the other instruments of national power can predominate (FM-1, 3–29). Homeland security has two components. The first component is homeland defense. If the United States comes under direct attack or is threatened by hostile armed forces, then Army forces under joint command conduct offensive and defensive missions as part of homeland defense. The other component is civil support, which is the fourth type of Army operation (FM-1, 3–30).

188

Appendix J

Civil support operations address the consequences of manmade or natural accidents and incidents beyond the capabilities of civilian authorities. Army forces do not conduct stability and reconstruction operations within the United States; under U.S. law, the federal and state governments are responsible for those tasks. Instead, Army forces conduct civil support operations when requested, providing Army expertise and capabilities to lead agency authorities (FM-1, 3–31).

Appendix K

Summary of Decisions on Information Sharing (Including Plans, Processes, and Organizations) U.S. STATES

Scale State

Actor 58 U.S. states

Date 2001–2007

Action Created Fusion Centers

Scope All crimes All hazards All sources

190

Appendix K

LAW ENFORCEMENT COMMUNITY IN THE U.S. (LOCAL, STATE, TRIBAL, FEDERAL) Scale National

Actor Global Justice Information Sharing Initiative (Global) IACP

Date In or about 1998?

Action Collaborating

Scope Law enforcement

Global/ March 2002 Criminal Intel Homeland National Sharing Summit security National Global IntelliDecember 2002 Meeting Homeland gence Working security Group National U.S. Attorney October 2003 Adopts National Homeland General Criminal Intellisecurity gence Sharing Plan National Criminal Intel May 2004 Formally created Homeland security Coordinating Council (CICC) National Global, the Collaborating to Homeland security CICC, U.S. form a focus DOJ, U.S. group on fusion centers DHS National U.S. Attorney 2006 Adopts fusion cen- Homeland General ter guidelines security

Appendix K

U.S. CONGRESS

Scale National

Actor U.S. Congress

National

U.S. Congress

National

U.S. Congress

National

Intelligence committees of the U.S. Congress

National

U.S. Congress

Date Action 2001 USA Patriot Act-expands the regional information sharing system (RISS) 2002 Homeland Security Act of 2002—created the DHS 2002 Homeland Security Act of 2002, Sec. 892—information sharing with state and local personnel could take place by such means as security clearances, non-disclosure agreements, and increased use of informationsharing partnerships Homeland Security Act of 2002, Sec. 892— Defines ‘‘state and local personnel’’ broadly Homeland Security Act of 2002, Sec. 892— creates ‘‘homeland security information’’ 2002 Joint Inquiry Recommendations released— information sharing and interoperability between the U.S. intel community, FBI, and state and local personnel 2004 IRTPA, Sec. 1016— directed that state fusion centers become part of the Information Sharing Environment (ISE) at ODNI

Scope Terrorism

Homeland security

Terrorism and WMD

Intelligence

(Continued)

191

192

Appendix K (Continued) Scale National

Actor U.S. Congress

National

U.S. House of Representatives

National

U.S. Senate

Date Action Scope 2007 Implemented Recommendations of the 9/ 11 Commission Act of 2007—created State, Local, and Regional Fusion Center Initiative Defined ‘‘fusion center’’ 2002 Created House Commit- Inter alia, intel tee on Homeland activities of Security DHS and state fusion centers 2005 Created Senate Commit- Inter alia, intel tee on Homeland activities of Security DHS and state fusion centers

Appendix K

U.S. EXECUTIVE BRANCH—PRESIDENT

Scale National

Actor President

Date Winter/ Spring 2003 July 29, 2003

National

President

National

President

2004

National

President

June 2, 2005

National

President

June 2, 2005

National

President

October 25, 2005

National

President

December 16, 2005

President

October 31, 2007

Action Created TTIC

Scope National security

Executive Order 13311—delegates Homeland Security Information Sharing tasks NCTC supersedes TTIC Presidential Memorandum—directed that the PM–ISE be in ODNI Established the Information Sharing Policy Coordination Committee (ISPCC) Executive Order 13388—makes the work of PM-ISE easier, restructures ISC; defines terrorism information Presidential Memorandum—guidelines for sharing of terrorism information National Strategy for Information Sharing, October 31, 2007

National security

National security National security

National security

193

194

Appendix K

U.S. EXECUTIVE BRANCH—AGENCIES

Scale National

Actor DHS

National

ODNI

FBI

Date November 2002 December 2004

September 2005

FBI

National

ODNI

National

FEMA

November 16, 2005 2007

National

DHS

2007

Action Congress created DHS Congress creates ODNI and the Information Sharing Environment 2007 Testimony before Congress— statement that FBI Director directed coordination between the FBI and fusion centers Mechanisms for FBI & fusion center collaboration: FBI Field Office FBI FIGs (Foreign Intelligence Groups) FBI—JTTF—Joint Terrorism Task Forces DNI-ISE-Implementation Plan

Scope Homeland security

Homeland security/ national security

Homeland security/ national security

National security

Address at National Homeland security Fusion Center conference—creation of Fusion Process Resource Center Address at National Fusion Center Conference— DHS Intelligence and Analysis reports that goal is 3-fold:

Appendix K (Continued) Scale

Actor

National

DHS

National

FBI

Date

2008

Action Scope 1. get state fusion center info to FEMA Emergency Operations Centers 2. develop Fire Service Intelligence enterprise with NYPD et al. 3. connect National Homeland Operations Center security DHS offices: Office of Intelligence & Analysis National Testimony before security Congress— described National Fusion Center Coordination Groups, part of ISE, the Groups

195

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Appendix L

The Commissions In the aftermath of September 11, 2001, three commissions called for reform of the intelligence community in the United States. They are: • Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001

In February 2002, the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence agreed to conduct a Joint Inquiry into the activities of the U.S. Intelligence Community in connection with the terrorist attacks perpetrated against our nation on September 11, 2001. This report (available as both S. Rept. 107-351 and H. Rept. 107-792). The recommendations were released on December 10, 2002 • National Commission on Terrorist Attacks Upon the United States

This is an independent and bi-partisan commission. The Final Report of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission Report or Final Report) was released on July 22, 2004. Laws authorizing the creation of the National Commission on Terrorist Attacks Upon the United States: Public Law 107-306; Public Law 108-207, Extension of National Commission on Terrorist Attacks Upon the United States; Excerpt, Public Law 107-306, Titles I and VI.

198

Appendix L • Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction

This is an independent and bi-partisan commission formed to investigate the intelligence that led to the U.S. entry into the war in Iraq based on the existence of WMD. Its report went to the President on March 31, 2005.

Notes CHAPTER 1 1. The 9/11 Commission Report—The Final Report of the National Commission on Terrorist Attacks Upon the United States. Authorized Edition. New York: W. W. Norton. July 22, 2004. pp. 361–362. 2. Final Report, p. 46. 3. Final Report, p. 362. 4. Final Report, p. 57. 5. Final Report, p. 58. 6. Final Report, p. 67. 7. ‘‘The Haze Administration—‘War on Terror’ is out; ‘overseas contingency operations’ is in.’’ The Wall Street Jounal, April 5, 2009. Accessed May 4, 2009, http://online.wsj.com. 8. Terrorist activities include the 1993 attacks on the World Trade Center, attacks on the U.S. Embassy in Kenya, and attacks on the USS Cole as well as national intelligence estimates from 1997 (the last before 9/11). 9. United States v. Rahman, 189 F. 3rd 88 (2d Cir. 1999). 10. Final Report, p. 168. 11. Final Report, p. 199. 12. Final Report, p. 199. 13. National Intelligence Estimate. ‘‘The Terrorist Threat to the US Homeland.’’ Prepared by The National Intelligence Council. July 2007. Accessed May 4, 2009, www.dni.gov. 14. Weber, Max. ‘‘Politics as Vocation,’’ pp. 13–18, in Catherine Bestemen (ed.) Violence: A Reader. New York: New York University Press, 2002.

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Notes 15. Von Clausewitz, General Carl. On War. Translated by Col. J. J. Graham, new and revised edition with an introduction and notes by Col. F. N. Maude, C. B. Volume 1. London: Routledge and Kegan Paul, 1968. 16. Van Creveld, Martin. Transformation of War. New York: The Free Press, 1991. p. 41. 17. Van Creveld, p. 36. 18. Air Force Doctrine Document 1 (AFDD-1), November 17, 2003, pp. 28–30. www.dtic.mil/doctrine/jel/service_pubs/afdd1.pdf. 19. Galula, David. Counterinsurgency Warfare—Theory and Practice, New York: Frederick A. Praeger, 1965, p. 1. 20. Galula, p. 9. 21. Langhorne, Richard. The Coming of Globalization—Its Evolution and Contemporary Consequences. New York: Palgrave, 2001. 22. Final Report, p. 363. 23. Final Report, pp. 394–395. 24. Final Report, p. 314n190. 25. Kent, Sherman. Strategic Intelligence for World Policy. Princeton, NJ: Princeton University, 1949. 26. Herman, Michael. Intelligence Power in Peace and War. Cambridge, UK: Cambridge University Press, 1996. p. 15. 27. U.S. Department of Justice. Law Enforcement Intelligence: A Guide for State, Local and Tribal Enforcement Agencies. (2004), p. 9 in chapter 2. Accessed December 31, 2006, www.cops.usdoj.gov/. 28. I use ‘‘IW’’ and ‘‘unconventional’’ warfare interchangeably.

CHAPTER 2 1. PL 107–36, November 27, 2002. 2. Final Report, p. 58. 3. Final Report, p. 67. 4. Final Report, p. 362. 5. Final Report, p. 57. 6. Final Report, p. 58. 7. Final Report, p. 67. 8. Terrorist activities include the 1993 attacks on the World Trade Center, attacks on the U.S. Embassy in Kenya, and attacks on the USS Cole as well as national intelligence estimates from 1997 (the last before 9/11). 9. Final Report, p. 168. 10. Final Report, p. 199. 11. Final Report, p. 199. 12. Hoffman, Frank G. ‘‘Small Wars Revisited: The United States and Nontraditional Wars.’’ Journal of Strategic Studies, Dec 2005, Vol. 28 Issue 6, pp. 913–940. Quoting Stern, ‘‘The Protean Enemy,’’ Foreign Affairs, July/August 2003, p. 30. 13. Hoffman, Frank, p. 929. 14. Hoffman, Frank, p. 923.

Notes 15. Newspaper articles on Bin Laden and others expanding their global network from Afghanistan and Pakistan. 16. Hoffman, Frank, p. 925. 17. Hoffman, Frank, p. 925. 18. Hoffman, Frank, p. 926. 19. Hoffman, Frank, p. 926, quoting Bruce Hoffman. Inside Terrorism. New York: Columbia University Press, 1998, p. 87. 20. Final Report, p. 47. See Chapter 2, p. 466n1–4. 21. Final Report, p. 47. 22. Clausewitz, pp. 1–2. 23. Clausewitz, p. xxiii. 24. Tse-tung, Mao. Selected Works of Mao Tse-tung: Vol. 2. London: Lawrence & Wishart, 1954. 25. Van Creveld, p. 41. 26. Van Creveld, p. 36. 27. Weber, p. 13. 28. Weber, p. 13. 29. Wright, Quincy. The Study of War, Second edition. Chicago: University of Chicago Press, 1965, p. 1376. 30. Baylis, John. ‘‘International and Global Security in the Post-Cold War Era,’’ p. 299–342, in John Baylis and Steve Smith (eds.), The Globalization of World Politics—An Introduction to International Relations, 3rd edition. Oxford: Oxford University Press, 2005. Baylis, p. 300, describes what ‘‘security’’ means: it is a contested concept and while there is general agreement on the meaning—freedom from threats—there is disagreement on the level of analysis, individual, national, or international. 31. Wheeler, N. J. and Booth, K. ‘‘The Security Dilemma,’’ p. 29–60, in J. Baylis and N. J. Rengger (eds.), Dilemmas of World Politics: International Issues in a Changing World. Oxford: Oxford University Press, 1992, pp. 29–31. 32. Townshend, Charles. The Oxford Illustrated History of Modern War. Oxford: Oxford University Press, 2005, p. 12, quoting Colmar von der Goltz’s Nation in Arms. 33. Baylis, p. 167. 34. Baylis, p. 169, quoting Morgenthau 1948, 1955, p. 30. 35. Baylis, p. 167. 36. Morgenthau, H. J. Politics Among Nations: The Struggle for Power and Peace, 2nd Edition. New York: Knopf, 1948, 1955, p. 26. 37. Clausewitz, p. 26. 38. Clausewitz. p. xxiii. 39. Clausewitz. p. 13. 40. Townshend, p. 8. 41. Clausewitz, pp. 1–2. 42. ‘‘Between 1800 and 1934, U.S. Marines staged 180 landings abroad.’’ Boot, Max. The Savage Wars of Peace—Small Wars and the Rise of American Power. New York: Basic Books, 2002, p. xiv. 43. Boot, p. xv. 44. Van Creveld, p. 42. 45. Van Creveld, p. 73.

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Notes 46. Van Creveld, p. 43. 47. Van Creveld, p. 45—militarism. 48. Gray, Colin S. ‘‘Irregular Enemies and the Essence of Strategy: Can the American Way of War Adapt?’’ U.S. Army War College, Strategic Studies Institute (quoted in USJFCOM—Irregular Warfare Special Study, August 4, 2006, Chapter 5—Recommendations, p. 39). 49. O’Neill, Bard, 1990. Insurgency & Terrorism: Inside Modern Revolutionary Warfare. Washington, DC: Brassey’s, p. 1. 50. O’Neill, p. 13, citing a definition of ‘‘civil war’’ in a dictionary of social sciences as cited in Sarkesian. Politics is defined as the process of making and executing binding decisions for a society. Generally, the major aspects of politics may be identified as the political community, the political system, the authorities, and policies. 51. Galula, p. 45. 52. Tomes, Robert R. ‘‘Relearning Counterinsurgency Warfare.’’ Parameters, Spring 2004, pp. 16–28, 21–22. 53. Taber, Robert. The War of the Flea—A Study of Guerilla Warfare, Theory and Practice. New York: The Citadel Press, 1970, p. 23. 54. Joes, Anthony James. Resisting Rebellion—The History and Politics of Counterinsurgency. Lexington: University of Kentucky Press, 2004, p. 10, p. 11n2 in Chapter 1. 55. Roy, Major Richard. ‘‘Eliminating the Shadows: Applying Counterinsurgency Doctrine to Peacekeeping,’’ in English, Allan D., Changing Face of War, p. 168 et seq, 170n12. 56. Galula, p. 9. 57. Galula, pp. 5–7. 58. Galula, p. 11; O’Neill, p. 24n12 and Shy, John and Thomas Collier. ‘‘Revolutionary War,’’ pp. 815–862 in Paret, Peter with Gordon Craig and Felix Gilbert (eds.). Makers of Modern Strategy—from Machiavelli to the Nuclear Age. Princeton: Princeton University Press, 1986, p. 817. 59. O’Neill, p. 24n14. 60. O’Neill, pp. 24–25. 61. O’Neill, p. 26n17. 62. Joes, Resisting Rebellion, p. 10. 63. Laqueur, p. xi. 64. Joes, Resisting Rebellion, p. 19, examples listed. 65. Joes, Resisting Rebellion, p. 241. 66. O’Neill, p. 25n16. 67. Laqueur, p. xiii. 68. The writing of Lt. Col. T. E. Lawrence, also known as ‘‘Lawrence of Arabia,’’ is included because his article entitled ‘‘The Evolution of Revolt’’ contains his observations on guerilla warfare as a British military intelligence liaison officer in the Arab Revolt of 1916 from Ottoman and European rule. In this account, the British were allies with the Arabs in opposing Ottoman Rule and also the Arabs were the irregular and regular army. Like the others above, he saw the importance of ideology. ‘‘Two nations professing incompatible philosophies set out to try them in the light of force. A struggle of two immaterial principles could only end when the supporters of one had no more means of resistance. An opinion can be argued

Notes with: a conviction is best shot. The logical end of war of creeds is the final destruction of one.’’ Lawrence, T. E. ‘‘The Evolution of Revolt,’’ CSI Reprint, Combat Studies Institute. Accessed, June 19, 2006, Commander’s Counterinsurgency Reading List, cgsc.leavenworth.army.mil/carl/download/csipubs/lawrence.pdf (accessed, July 15, 2006), www-cgsc.army.mil/carl/resources/biblio/CAC_counterinsurgency.asp p. 6. Note that page numbers refer to the original pages in Lawrence’s publication. These are two less than the page numbers in the CSI reprint, which does reproduce the original page numbers as well. 69. Lawrence, p. 3. 70. Lawrence, p. 11. 71. Lawrence, p. 4. 72. Lawrence, p. 15. 73. Lenin, V. I. What Is To Be Done? Burning Questions of Our Movement. New York: International, 1929. Accessed August 10, 2006, www.fordham.edu/halsall/mod/1902lenin.html. 74. Shy and Collier. p. 839. 75. Tse-tung, Selected Works, pp. 202–203. 76. Tse-tung, Mao, On Guerilla Warfare, Translated by Samuel Griffith. New York: Praeger, 1961, pp. 20 and 26. 77. Tse-tung, Selected Works, p. 121. 78. Tse-tung, Selected Works, pp. 121–122. 79. Quoted in Tse-tung, On Guerilla Warfare, p. 27. 80. Tse-tung, Selected Works, p. 125. 81. Struthers, CDR Ross. ‘‘Mao Zedong: A Peasant Who Learned From History,’’ p. 105 in English, Allan D. The Changing Face of War. 82. Tse-tung, Selected Works, pp. 183–184. 83. Tse-tung, On Guerilla Warfare, pp. 20–21. 84. Tse-tung, On Guerilla Warfare, p. 21. 85. Tse-tung, Selected Works, p. 124. 86. Tse-tung, Selected Works, p. 124. 87. Tse-tung, On Guerilla Warfare, p. 7. 88. Tse-tung, On Guerilla Warfare, p. 7. 89. Wynnyk, LCOL Paul F. ‘‘Vo Nguyen Giap: A Strategy for Protracted Revolutionary War,’’ p. 135, quoting Shy and Collier, Revolutionary War, p. 817, in English, Allan D., The Changing Face of War, pp. 140–141. 90. Wynnyk, p. 143. 91. Hammes, Col. Thomas X. The Sling and the Stone, St. Paul: Zenith Press, 2004, p. 56. 92. Wynnyk. 93. Joes, Resisting Rebellion, p. 20. 94. www.marxists.org/archive/guevara/1963/09/guerrilla-warfare.htm. 95. Joes, Resisting Rebellion, p. 234. 96. Joes, Resisting Rebellion, p. 234. 97. Marighella, Carlos. Minimanual of the Urban Guerilla. Washington, DC: U.S. Citizens Committee for a Free Cuba, Inc., 1969. 98. Marighella. 99. Marighella. 100. Marighella.

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Notes 101. The translator for himself. Tse-tung, p. 8. 102. Taber, pp. 21–23. 103. Trinquier, Roger. Modern Warfare: A French View of Counterinsurgency, 1961. Part 2. 104. Trinquier, p. 11. 105. Trinquier, Part 2, pp. 13–14. 106. Trinquier, Intro by Bernard Fall, Part I, p. 9. 107. Galula, p. 3. 108. Manwaring, Max, ‘‘The Threat in the Contemporary Peace Environment: The Challenge to Change Perspectives,’’ in Corr, E. and S. Sloan (eds.), Low Intensity Conflict: Old Threats in a NewWorld. Boulder, CO: Westview Press, 1992, p. 53. 109. Manwaring, p. 12. 110. Galula, pp. 13–14. 111. Galula, p. 14. 112. Sepp, Kalev I. ‘‘Best Practices in Counterinsurgency.’’ In Military Review, May-June 2005, pp. 8–12. 113. Sepp, p. 9. 114. Crane, Horvath, and Nagl, p. 51. 115. Joes, Resisting Rebellion, 10. 116. Trinquier, Part 2, p. 29. Quoting Trinquier, Counterinsurgencies require ‘‘an interlocking system of actions—political, economic, psychological, and military—that aims as the [insurgents’ intended] overthrow of the established authority in a country and its replacement by another regime.’’ Tomes, p. 17n2. 117. Trinquier, Part 2, p. 28. 118. Trinquier, Part 3, p. 9. 119. Paget, Julian, Counter-Insurgency Operations: Techniques of Guerrilla Warfare. New York: Walker, 1967, p. 30. 120. Paget, pp. 33–35. 121. Galula, p. 43. 122. Galula, p. 44. 123. Nagl, John, Counterinsurgency Lessons from Malaya and Vietnam: Learning to Eat Soup with a Knife, Westport, CT: Praeger, 2002, p. 26. In conventional warfare, these are known as the direct or indirect approaches. 124. Taber, p. 26. 125. Taber, p. 11. 126. Nagl, p. 26. 127. Nagl, p. 29. 128. Paget, p. 157. 129. Paget, p. 157. 130. Paget, p. 158. 131. Paget, p. 158. 132. The state’s behavior in the internal/domestic sphere is regulated by an unwritten contract between the individuals and the state. That is, citizens trade liberty for security. The state, the domestic sovereign authority, provides internal security in the form of law, police protection, prisons, and other coercive measures. The state provides internal order, internally and domestically, through the criminal justice system. 133. p. xii.

Notes 134. Langhorne, p. 110. 135. Marshall, Monty G. and Ted R. Gurr. ‘‘Peace and Conflict 2005: A Global Survey of Armed Conflicts, Self-Determination Movements, and Democracy.’’ www.systemicpeace.org/PC2005.pdf. 136. The COW site also lists major resources and data sets frequently used by scholars in quantitative analyses of international relations. www.correlatesofwar. org/. 137. Building upon the work of other pioneers such as Pitirim Sorokin, Lewis Frye Richardson, and Quincy Wright, Singer and Small published The Wages of War in 1972, a work that established a standard definition of war that has guided the research of hundreds of scholars since its publication. www.correlatesofwar. org/. 138. Langhorne, p. 2. 139. Held, David, Anthony McGrew, David Goldblatt, and Jonathan Perraton. Global Transformations: Politics, Economics, and Culture. London: Polity, 1999; Jonsson, Christer, Sven Tagil, and Gunnar Tornqvist. Organizing European Space. London: Sage, 2000. 140. Rosenau, James N. Along the Domestic-Foreign Frontier—Exploring Governance in a Turbulent World. Cambridge, UK: Cambridge University Press, 1997. 141. Friedman, Thomas L. The Lexus and the Olive Tree. New York: Anchor Books, 2000. 142. Alexander Hinton, Lecture, CG Colloquium entitled ‘‘Global Flows and Local Realities,’’ April 1, 2002, Newark, NJ. 143. Wallace, 1956. Hinton lecture. 144. Zacher, Mark. ‘‘The Territorial Integrity Norm: International Boundaries and the Use of Force,’’ International Organizations, 55:2, Spring 2001, pp. 215– 250. 145. Friedman. 146. Sassen, Saskia. ‘‘Embedding the Global in the National: Implications for the Role of the State,’’ in David A. Smith, Dorothy J. Solinger, and Stephen C. Topik (eds.), States and Sovereignty in the Global Economy. London: Routledge, 1999, pp. 158–171. 147. James Rosenau, Yale Ferguson. 148. Kaldor, Mary. New and Old Wars: Organized Violence in a Global Era. Stanford: Stanford University Press, 1999, p. 1. 149. Kaldor, pp. 1 and 11. 150. Wars of the first kind are the conventional wars of the 18th and 19th centuries. Wars of the second kind are nuclear wars. Wars of the third kind are those located in Third World states. 151. Holsti, K. J. The State, War, and the State of War. Cambridge: University of Cambridge Press, 1996, p. 37. 152. Holsti, p. 36. 153. Kaldor, p. 2. 154. Kaldor, p. 2. 155. Kaldor, p. 2. 156. Kaldor, p. 3. 157. Kaldor, pp. 6–7.

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Notes 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170.

Kaldor, p. 7. Kaldor, p. 8. Kaldor, p. 8. Kaldor, p. 9. Holsti, p. 37. Holsti, p. 36. Holsti, p. xi. Holsti, p. xii. Holsti. Holsti, p. xii. Hoffman, p. 924. Hoffman, p. 928. Final Report, p. 363.

CHAPTER 3 1. Wright, p. 1376. 2. Haig v. Agee, 453 U.S. 280 (1981). 3. Justice Burton, in Lichter v. United States, 334 USC 742 (1948). 4. Jacobsen v. Massachusetts, 197 USC 11, 22 (1905). 5. For example, in McCullough v. Maryland, 4 Wheat (17 USC) 316, 403 (1819). 6. 7 J. Richardson, supra at 3215, 3216, 3481. LOC Constitution doc, p. 461. 7. United States v. Rahman. 8. Public Law 107–40, 115 Stat. 224. Signed by President George W. September 18, 2001. 9. 50 USC 1541–1548, PL 93-148, 87 Stat. 555, November 7, 1973. Section 1541 of the War Powers Resolution states that ‘‘The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.’’ 10. 66 Fed. Reg. 48197–48199, Tuesday, September 18, 2001. 11. 50 USC 1701 et seq. 12. EO 13224 must be classified because I cannot find it. I learned that it existed in the EO dated July 2, 2002 that revokes the national emergency created by the Taliban, i.e., EO 12129, dated July 4, 1999. 13. United States v. Curtiss-Wright Export Corporation, 299 USC 304, 316, 318, 57 S.CT 216, 81 L.Ed. 255 (1936). 14. U.S. Constitution, Art. I, Sec. 8, clauses: (2) to borrow money on the credit of the United States . . . (11) to declare war . . . (12) to raise and support armies, but no appropriation of money to that use shall be for longer term than two years; (13) to provide and maintain a navy; (14) to make rules for the government and regulation of the land and naval forces; (15) to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel

Notes invasions; (16) to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of officers, and the authority of training the militia according to the discipline prescribed by Congress. 15. U.S. Constitution, Art. I, Sec. 8, cl. 18. 16. McCullough v. Maryland, 117 USC 316, 4 L.Ed. 579 (1819) interpreting Art. I, Sec. 8, cl. 18. Doctrine of implied powers. 17. 50 USC 1541–1548, PL 93–148, 87 Stat. 555, November 7, 1973. 18. DOJ Memo, 9/15/01—p. 14. The OLC does not take this as a legally binding definition of presidential authority to deploy our armed forces. 19. War of 1812, the Mexican–American War 1846, the Spanish–American War, 1898, WWI and WWII. Shanor, Charles A. and L. Lynn Hogue. National Security and Military Law in a Nutshell, St.Paul, MN: Thomson West, 2003, p. 7. 20. 50 USC 1701 et seq. 21. PL 94–412, 90 Stat 1255 (1976). 22. 50 USC 401 et seq.; PL 80–253. 23. Section 2. 24. U.S. Constitution, Art. II, Sec. 1, cl. 8. 25. U.S. Constitution, Art. II, Sec. 2, cl. 1. 26. U.S. Constitution, Art. II, Sec. 2, cl. 2. 27. United States v. Curtiss-Wright. 28. United States v. Curtis-Wright (1936). 29. Perez v. Brownell, 356 USC 44 (1958), overruled on other grounds Afroyim v. Rusk, 387 USC 253 (1967). 30. United States v. Curtiss-Wright, 299 USC 304, 319. (1936). 31. Baker, James E. ‘‘National Security Process: Process, Decision, and the Role of the Lawyer,’’ in Moore, John Norton, and Robert E. Turner, National Security Law. Durham: Carolina Academic Press, 2005, p. 911, 914. 32. Youngstown Sheet & Tube Co. v. Sawyer, 343 USC 579 (1952). Youngstown Steel, pp. 636–638. Accessed January 2, 2007. www.law.cornell.edu/supct/ html/historics/USSC_CR_0343_0579_ZC2.html#343_US_579fn4/2. 33. Duncan v. Kahanamoku, 327 USC 304, 335 (1946) (Stone, J. concurring). Cited in DOJ opinion, September 15, 2001, p. 8. 34. The origins of the political question doctrine are Marbury v. Madison, 5 USC 137, 170 (1803), ‘‘the province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.’’ 35. LOC, pp. 570–571 and using as authority, Foster v. Nielson, 27 USC (2 Pet.) 253. (1829), restated in Chicago & S. Airlines v. Waterman S.S. Corp, 33 USC 103 (1948). 36. Chicago v. Waterman, 333 USC 111 (LOC, p. 573). 37. Am. Jur. 2nd, Vol. 78, Sec. 5, p. 26, Ludecke. Watkins, 335 USC 160, 68 S. Ct. 1429, 92 L.Ed. 1881 (1948); In re Wulzen, 235 F. 362 (S.D. Ohio 1916); Beley v. Pennsylvania Mut. Life Ins. Co., 373 Pa. 231, 95 A. 2d 202, 36 A.L.R. 2nd 996 (1953).

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Notes 38. Am. Jur. 2nd, Vol. 78, Sec. 5, p. 26, Matthews v. McStea, 91 USC 7, 23 L.Ed. 188 (1875); The Neustra Senora de la Caridad, 17 USC 497, 4 L.Ed. 624 (1819); Beley v. Pennsylvania Mut. Life Ins. Co., 373 Pa. 231, 95 A. 2d 202, 36 A.L.R. 2nd 996 (1953); West v. Palmetto State Life Ins. Co., 202 USC 422, 25 S.E. 2nd 475, 145 A.L.R. 1461 (1943); State ex rel. Mays v. Brown, 71 W. Va. 519, 77 S.E. 243 (1912). 39. Am. Jur. 2nd, Vol. 78, Sec. 5, p. 26, The Amy Warwick, 67 USC 635, 17 L.Ed. 459 (1862); In re Wulzen, 235 F. 362 (S.D. Ohio 1916); O’Neill v. Central Leather Co., 87 N.J.L. 552, 94 A. 789 (NJ Ct of Err. & App 1915), aff’d, 246 USC 297, 38 S. Ct. 309, 62 L.Ed. 726 (1918); Sutton v. Tiller, 46 Tenn. 593, 6 cold. 593, 1869 WL 2594 (1869). 40. Hirabayashi v. United States, S. Ct. 1943, upholding conviction for violating a curfew based on EO 9066. 41. Baker v. Carr, 369 USC 186 (1962) LOC, p. 574. 42. Japan Whaling Assn. v. American Cetacean Society, 478 USC 221, 229– 230 (1986). 43. Katz v. United States, 389 USC 347 (1967). 44. In United States v. United States District Court, 407 USC 297 (1972). 45. The combatant commands include the unified combatant commands and the specified combatant commands. The unified combatant commands include Joint Forces Command, Strategic Command, Special Operations Command, Northern Command, Central Command, European Command, Pacific Command, Southern Command, Space Command, Transportation Command, North American Aerospace Defense Command, and Joint Intelligence Operations Command. Specified combatant Commands include Army Intelligence and Security Command (INSCOM), U.S. Army Space and Missile Command, Naval Intelligence Command, Naval Security Group Command, counterintelligence elements of Naval Security and Investigative Command, and Electronic Security Command, USAF. Source: 10 USC 167; Department of Defense Directives (DODD) 5240.1, DODD 5240.1-R.; Army Regulation 381–10. 46. Combat-support agencies are the Defense Intelligence Agency (DIA), National Geospatial-Intelligence Agency (NGA), and the National Security Agency (NSA). 47. 10 USC 101(a)(8). 48. Section 6.6.1.1. Department of Defense Directive 5100.1, dated August 1, 2002, certified current November 21, 2003. Accessed at www.fas.org on March 22, 2007. 49. DODD 5100.1, Sec. 6.6.2.1. 50. DODD 5100.1, Sec. 6.6.2.1.1. 51. DODD 5100.1, Sec. 6.6.3.1. 52. 10 USC 161(a) (1) and (2). 53. The creation of NORTHCOM, a unified command, was announced on April 17, 2002 by the Secretary of Defense. The command stood up Oct. 1, 2002. It was declared ‘‘fully operational’’ Oct. 1, 2003. The command is based in Colorado Springs, CO. www.defenselink.mil/advisories/2002/p04162002_p07302.html.

Notes 54. National Strategy for Homeland Defense and Civil Support, dated June 2005. Washington, DC: Department of Defense. Accessed March 22, 2007, at www.fas.org, p. iii. 55. U.S. Northern Command (NORTHCOM) is headquartered in Colorado Springs, CO. Established in 2002, NORTHCOM is responsible for planning, organizing, and executing homeland defense and civil support missions within the continental United States, Alaska, and territorial waters. It also coordinates security cooperation with Canada and Mexico. In addition to the landmasses of the United States, Canada, and Mexico, NORTHCOM’s area of responsibility includes the coastal approaches, the Gulf of Mexico, Puerto Rico, and the U.S. Virgin Islands. National Strategy for Homeland Defense and Civil Support, p. 8. 56. www.northcom.mil/index.cfm?fuseaction=s.who_mission. Accessed December 30, 2005. 57. ‘‘Eberhart Briefs Congress on U.S. Northern Command,’’ posted Mar 14, 2003. www.northcom.mil/index.cfm?fuseaction=news.showstory&storyid= EE9730BE-E953-A751-135915FCE93DA621&pf=1. Accessed December 30, 2005. 58. ‘‘U.S. Northern Command Element Helps Save Lives in New Orleans,’’ by Maj. Steve Osterholzer. www.northcom.mil/index.cfm?fuseaction=news. showstory&storyid=50DD0CDA-B437-C6B9-1AED8DDCC737B68B. Accessed on December 30, 2005. 59. ‘‘NORAD and NORTHCOM Stand Ready for Super Bowl’’ posted January 29, 2004. www.northcom.mil/index.cfm?fuseaction=news.showstory& storyid=63A94537-EFF2-69A6-5C7651292685FA3A. Accessed December 30, 2005. 60. ‘‘Vice President Rallies Troops at Peterson AFB’’ posted Aug 02, 2004. www.northcom.mil/index.cfm?fuseaction=news.showstory&storyid=1FB30534E71D-14F4-91EFA8FCAE3A4F23. Accessed December 30, 2005. 61. 10 USC 151(b)(1). 62. 10 USC 161(b). 63. 10 USC 163(a)(1). 64. 10 USC 163(b)(2). 65. Zegart, Amy. Flawed by Design—the Evolution of the CIA, JCS and NSA. Stanford: Stanford University Press, 1999, p. 109. 66. Zegart. 67. Zegart, p. 110. 68. Guerin v. City of Little Rock, 203 Ark. 103, 155 S.W. 2d 719 (1941), 16A Am Jur 313, p. 249. 69. Southern Bell Tel. & Tel. Co. v. State ex rel Ervin, 75 so. 2d 796 (Fla 1954); 16A Am Jur 2d 326. 70. 16A Am Jur 2d 316, p. 252. 71. In re Quinn, 35 Cal. App. 3d 473, 110 Cal. Rptr. 881 (5th Dist. 1973). 72. Freund, Ernest. The Police Power—Public Policy and Constitutional Rights. Chicago: Callaghan & Co., 1904, p. 2. 73. Ruona v. City of Billings, 136 Mont. 554, 323 P. 2d 29 (1958); Quesenberry v. Estep, 142 W. Va. 426, 95 S.E. 2d 832 (1956). 74. Dodger’s Bar & Grill, Inc. v. Johnson County Bd. of City Cmssers, 33 F. 3rd 1436 (10th Cir. 1994).

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Notes 75. Peavy-Wilson Lumber Co. v. Brevard County, 159 Fla. 311, 37 So. 2d 483 (1947). 76. Berman v. Parker, 348 USC 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954). 77. Am. Jur. 2d 322, p. 259n37. 78. Freund, p. iii. 79. State ex rel Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 121 A.L.R. 283 (1939); 16A Am Jur 2d 323, p. 259. 80. State v. Kartus, 230 ala. 352, 162 So. 533, 101 A.L.R. 1336 (1935); 16A Am Jur 2d 323, FN 45, p. 260. 81. Freund, p. 3. 82. Dubber, Markus Dirk. The Police Power—Patriarchy and the Foundations of American Government. New York: Columbia University Press, 2005, p. xi. 83. Dubber, p. xiv. 84. Dubber, p. xiv. 85. 16A Am Jur 2d 329. 86. 16A Am Jur 2d 335 and 336. 87. Chicago, R. I. & P. Ry. Co. v. State of Ark, 219 USC 453, 31 S. Ct. 275, 55 L. Ed. 290 (1911); 16A Am Jur 2d 328. 88. McCullough v. Maryland. 89. Morris v. Jones, 329 USC 545, 67 S. ct. 451, 91 L.Ed. 488 (1947); 16A Am Jur 2d 325. 90. U.S. Constitution, Art. VI, cl. 2. The Supremacy Clause states: ‘‘This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.’’ 91. 16A Am. Jur. 2d 322, p. 262, FN 64 and then 65. 92. United States v. City of Chester, 144 F. 2d 415 (C.C.A. 3rd cir. 1944); 16A Am Jur 2d 325. 93. Jones v. Rath Packing Co., 430 us 519, 97 s. ct. 1305 (1977). 94. ‘‘States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of its laws.’’ 95. Central Platte Natural Resources Dist. v. City of Fremont, 250 Neb. 252, 549 N.W. 2d 112 (1996); 16A Am Jur 2d 329. 96. City of Baton Rouge v. Rebowe, 226 La. 186, 75 So. 2d 239 (1954); 16A Am Jur 2d 331. 97. Hoff v. State, 39 del. 134, 197 A. 75 (Super. Ct. 1938); 16A Am Jur 2d 331. 98. Tip Top Foods, Inc. v. Lyng, 28 Cal. App. 3d 533, 104 Cal Rptr. 718 (1st dist. 1972); 16A Am Jur 2d 333. 99. Alford v. City of Newport News, 220 Va. 584, 260 S.E. 2d 241 (1979); 16A Am Jur 2d 331. 100. U.S. Constitution, Art. I, Sec. 8, cl. 3.

Notes 101. Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d 223, 638 N.E. 2d 533 (1994); 16A Am Jur 2d 340. 102. Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682 (1924); 16A Am Jur 2d 343. 103. Thurlow v. Com. Of Mass., 46 USC 504, 5 How. 504, 12 L.Ed. 256 (1847); 16A Am Jur 2d 330. 104. 16A Am Jur 2d 325. 105. 426 USC 833 (1976). 106. 469 USC 528 (1985). 107. National League of Cities, 49 L.Ed 2d at 258. Accessed via Rutgers University Library, Lexis-Nexis Academic, April 15, 2007. 108. 426 USC at 849, quoting Kovacs v. Cooper, 336 USC 77, 95 (1949). 109. Garcia at 556. 110. 501 USC 452 (1991). 111. Gregory v. Ashcroft at 457. 112. Gregory v. Ashcroft at 457 quoting Texas v. White, 74 U.S. 700, 7 Wall. 700, 725, 19 L.Ed.227 (1869), quoting Lane County v. Oregon, 74 U.S. 71, 7 Wall. 71, 76, 19 L. Ed. 101 (1869). 113. 505 USC 144 (1992). 114. New York at 162. 115. New York v. United States, 505 U.S. 167. Accessed via Rutgers University Library, Lexis-Nexis Academic, April 15, 2007. 116. 514 USC 549 (1995). 117. Lopez at 567. 118. 521 USC 898 (1997). 119. Printz at 919. 120. Printz at 922, quoting The Federalist Papers No. 28 at 180–181. 121. 120 S. Ct. 1740 (2000). 122. United States V. Morrison, 529 U.S. 598 (2000) at 1751. 123. Morrison at 1758. 124. Morrison at 1754. 125. Morrison at 1754 (citing Cohen v. Virginia, 6 wheat. 264 [1821]). 126. Morrison at 1752 and 1753, n. 7. 127. People v. Chicago, 413 Ill. 83, 108 N.E. 2d 16 (1952). 128. EO 12148, Federal Emergency Management, signed July 20, 1979, effective July 15, 1979, 44 FR 43239, dated July 24, 1979, amended by EO 13286, February 28, 2003, 68 FR 10619, Sec. 52 which put FEMA in the Department of Homeland Security. 129. EO 12148, as amended, Sec. 2–201. 130. EO 12919, signed June 3, 1994, Section 104, 59 Federal Register 29525, dated June 7, 1994. 131. 42 USC 5121 et seq. 132. EO 12148, as amended, Sec 2–203. 133. 42 USC 10501. 134. 42 USC 10502(3). 135. 42 USC 10501(c)(5). 136. 42 USC 10503(b). 137. 10 USC 382(b).

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Notes 138. 42 USC 5122(1) and (2). 139. 42 USC 5122(2). 140. 42 USC 5122(1). 141. 42 USC 5170(a). 142. 42 USC 5191(b). 143. 10 USC 331. 144. 10 USC 332. 145. 10 USC 333. 146. EO 12656, Assignment of Emergency Preparedness Responsibilities, November 18, 1988. 147. EO 12656, Assignment of Emergency Preparedness Responsibilities, November 18, 1988. Sec. 101(a). 148. EO 12656, Sec. 103(b). 149. 10 USC 376. 150. 18 USC 1385. 151. United States v. McArthur (1975, DC ND) 419 F.Supp. 186, aff’d (1976, CA 8 ND) 541 F. 2d 1275, cert den’d (1977) 430 USC 970, 52 L.Ed 2d 362, 97 S. Ct. 1654. 152. PCA was made applicable to the Navy and Marine Corps by 10 USC 375; Department of Defense Directive 5525.5, DOD Cooperation with Civilian Law Enforcement Officials, January 15, 1986, change 1, December 20, 1989. Sec. 2.1; and Secretary of the Navy Instruction (SECNAVIST) 5820.7B, Cooperation with Civilian Law Enforcement Officials, March 28, 1988. 153. 1994 amendment adding the fine. PL 103–322. 154. 32 Code of Federal Regulations (CFR), Section 215.4(b), Employment of Military Resources in the Event of Civil Disturbances—Legal Considerations. 155. 32 CFR 215.4(c). 156. 32 CFR 215.4(c)(1). 157. 32 CFR 215.4(c)(1)(i). 158. 32 CFR 215.4(c)(1)(ii). 159. 32 CFR 215.4(c)(2)(i). 160. 10 USC 331, 332, 333. 161. United States v. McArthus, DCND 1975, 419 F. supp. 186, aff’d 541 F. 2d 1275, cert denied 97 S. Ct. 1654, 430 U.S. 970, 52 L.Ed.2d 362. 162. 10 USC 375. See also United States v. Red Feather, 392 F. supp. 916 (1975, DC SD). 163. 32 CFR 215.5(a)(1). 164. 32 CFR 215.5(a)(2). 165. 32 CFR 215.9(a)(1)–(3). 166. State v. Nelson (1979) 298 NC 573, 260 SE2d 629, cert den’d (1980) 446 USC 929, 64 L.Led 2d 282, 100 S. Ct. 1867. 167. United States v. Red Feather, 392 F. supp. 916 (1975, DC SD). 168. EO 12148, EO 12656. 169. EO 12656, Sec. 1101, (2). 170. EO 12656, Part 5, Sec. 501 (1). 171. EO 12656, Sec. 501(6)(a). 172. EO 12656, Sec. 501(12). 173. EO 12656, Sec. 502(7).

Notes 174. ‘‘Protection Against Unconventional Threats to the Homeland and Americans Overseas,’’ dated May 22, 1998. Department of Justice. www.ojp.usdoj.gov/ odp/docs/pdd62.htm. Accessed March 1, 2007. 175. 10 USC 311—‘‘Militia: Composition and Classes’’ (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in Section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. 176. Title 32 of the U.S. Code concerns the National Guard. See 32 CFR 564. 177. Homeland Security, JP 3–26, p. IV-1. 178. JP 3-26, p. IV-1. 179. Perpich v. Department of Defense, 496 USC 334 (1990). 180. In re Neagle, 135 USC 1, 10 S. Ct. 658, 34 L.Ed. 55 (1890). 181. Johnson v. Powell, 414 F 2d 1060 (5th cir. 1969). 182. ‘‘Montgomery Amendment’’ at 10 USC 672 at 10 USC 12301(f). 183. Perpich v. Department of Defense, and Dukakis v. U.S. Department of Defense, 686 F. Supp. 30 (D. Mass. 1988), aff’d 859 F. 2d 1066 (1st Cir. 1989). 184. Morrison at 598. 185. Public Service Commission, Second Dist. v. New York Cent. R. Co., 230 N.Y. 149, 129 N.E. 455, 14 A.L.R. 449 (1920). 186. Guttag v. Shatzkin, 230 N.Y. 647, 130 N.E. 929 (1921). 187. Re Ex parte Blaney, 30 Cal. 2d 643, 184 P. 2d 892 (1947). 188. Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Clinton Rossiter (ed.). New York: Mentor book, 1961. No. 69, Alexander Hamilton, p. 418. 189. L. Henkin, Foreign Affairs and the U.S. Constitution, Oxford: Clarendon Press, 1972. pp. 50–61. 190. Henkin, p. 48 or 418. 191. CMR theories can be categorized as follows: in the Cold War period, the Huntington, Janowitz, and Finer theories; in the Vietnam era, the ‘‘gap’’ theorists including Kohn; and in the post–Cold War period, the ‘‘crisis’’ theorists including Feaver, Avant, and Desch. 192. Keithley, Blair A. ‘‘Dimensions of Professional Ethics for the Modern United States Military.’’ Thesis, Naval Postgraduate School. September 2001, p. 21. 193. Keithley, p. 22. 194. Keithley, quoting Janowitz, Keithley, p. 54. 195. Keithley, p. 52n53.

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Notes 196. Surrogate’s Court, Duchess County, New York, ruled July 25, 1950, that the estate of Franklin D. Roosevelt was not entitled to tax benefits under sections 421 and 939 of the Internal Revenue Code, which extends certain tax benefits to persons dying in the military services of the United States. NYT, July 26, 1950, p. 27, col. 1. Cited in The Constitution of the United States of America, Analysis and Interpretation, Analysis of Cases decided by the Supreme Court of the United States to June 28, 2002. Prepared by the Congressional Research Service, Library of Congress. Sen. Doc. No. 108–17. Washington, DC: Government Printing Office, 2004, pp. 477– 478. Accessed November 21, 2006. www.gpoaccess.gov/constitution/index.html. 197. The Department of Defense is composed of the Office of the Secretary of Defense (OSD), the military departments, the Chairman of the Joint Chiefs of Staff (JCS), the combatant commands, the inspector general of the DOD, the Defense Agencies, the DOD Field Activities, and such other offices, agencies, and activities established by law, the President, or Secretary of Defense. DODD 5100.1, ‘‘Functions of the Department of Defense and its Major Components.’’ Dated 8/01/2002. Definitions also provided in 10 USC 101, Definitions, (a)–(g). 198. 10 USC 113(a). 199. 10 USC 101(a)(8). 200. 10 USC 151(b)(1). 201. States are barred from certain activities such as keeping troops or ships of war in time of peace, entering into any agreement or compact with another state or with a foreign power, or engaging in war, unless actually invaded, or in such imminent danger as will not admit delay. (Art. I, Sec. 10(3)). The distinction is between standing armies and militias. 202. The ‘‘militia’’ is the body of citizens in a state, enrolled for discipline as a military force, but not engaged in actual service except in emergencies, as distinguished from regular troops or a standing army. Black, Henry Campbell. Black’s Law Dictionary. St. Paul: West Publishing Co., 1990, p. 993. State v. Dawson, 272 N.C. 535, 159 S.E. 2nd 1, 9. 203. Gilligan v. Morgan, S. Ct. 1973. 204. In re Neagle, S. Ct. 1890. 205. Dynes v. Hoover, (s. Ct. 1857). 206. United States ex rel. French v. Weeks (S. Ct. 1922). 207. Rostker v. Goldberg, 453 USC 57 1981). 208. Schlesinger v. Ballard, 419 USC 498 (1975). 209. United States v. Brown FN 24. 210. Hartmann v. Stone, 6ht Cir. 1995. 211. United States v. Brown, USCAAF 1996. 212. Shanor and Hogue, p. 140. 213. Parker v. Levy, 417 U.S. 733 (1974). 214. Parker v. Levy, at 743. 215. Runkle v. United States 1887. 216. Parker v. Levy. CHAPTER 5 1. 50 USC 401a(1). 2. 50 USC 401a(1). The term ‘‘or international terrorist activities’’ was added in 2001. PL 107–56. 3. 50 USC 401a(2).

Notes 4. Wen Ho Lee, a Chinese-American scientist at a U.S. national lab, was charged with and later acquitted of passing classified atomic energy information to the Chinese government. Investigators were able to determine that he not only had access to this information but also that he was downloading it and transferring information onto magnetic tape. 5. This was a counterintelligence case called the ‘‘Taiwan Four Pillars case.’’ An employee of a U.S. company was found guilty under the Economic Espionage Act of 1996 for illegal transfer of trade secrets to a Taiwanese company. FBI Counterintelligence Web site, www.fbi.gov/hq/ci/cases.htm. 6. Robert Hansen was charged with giving away classified information. He pled guilty to 15 counts of espionage-related charges. FBI Counterintelligence Web site, www.fbi.gov/hq/ci/cases.htm. 7. The second level of consumers is at the departmental level; the consumers are senior department officials who need information relevant to their department’s mission. The type of intelligence produced to meet their needs is departmental intelligence. The third level of consumers is military commanders, military officers who need information for their specific combat or other military operation. The type of intelligence produced for them is tactical intelligence. 8. In 2004, the IRTPA amended the National Security Act definition of ‘‘national intelligence’’ and ‘‘intelligence related to national security.’’ PL 108–458, The Intelligence Reform and Terrorism Prevention Act of 2004 SEC. 1012, Revised Definition Of National Intelligence, Paragraph (5) of Section 3 of the National Security Act of 1947 (50 USC 401a) was amended to read: ‘‘National intelligence’’ and ‘‘intelligence related to national security’’ shall refer to all intelligence, regardless of the source from which derived and including information gathered within or outside the United States, that (A) pertains, as determined consistent with any guidance issued by the President, to more than one United States Government agency; and (B) that involves 1. threats to the United States, its people, property, or interests; 2. the development, proliferation, or use of weapons of mass destruction; or 3. any other matter bearing on United States national or homeland security. 9. National Strategy for Homeland Security, p. 17. 10. National Strategy for Homeland Security. www.dhs.gov/xlibrary/assets/ nat_strat_homeland security_2007.pdf. 11. National Strategy for Homeland Security, p. 14. 12. National Strategy for Homeland Security, p. 7. 13. National Strategy for Homeland Security, p. 8. 14. National Strategy for Homeland Security, p. 41. 15. Presidential Decision Directive 35, ‘‘Intelligence Requirements,’’ March 2, 1995. www.fas.org/irp/offdocs/pdd35.htm. 16. I cannot find any document rescinding it, though such a document may be classified. 17. Lowenthal, Mark M. Intelligence: From Secrets to Policy, 3rd edition. Washington, DC: Congressional Quarterly Press, 2006, p. 36. 18. 50 USC 1801, et seq.; PL 95–511.

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Notes 19. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, PL 107–56, October 26, 2001 (The ‘‘USA Patriot Act’’). 20. The constitutionality of FISA has been consistently upheld by federal courts that have ruled on the issue. United States v. Belfield, 223 U.S. App. D.C. 417, 692 F. 2d 141 (D.C. Cir. 1982); United States v. Falvey, 540 F. Supp. 1306 (E.D. N.Y. 1982); United States v. Megahey, 553 F. Supp. 1180 (E.D. N.Y. 1982). 21. Lowenthal, 3rd ed., p. 95. 22. Lowenthal, 3rd ed., p. 96. 23. Lowenthal, 3rd ed., p. 96. 24. Lowenthal, 3rd ed., p. 89. 25. Lowenthal, 3rd ed., p. 89. 26. Lowenthal, 3rd ed., p. 90. 27. Lowenthal, 3rd. ed., p. 80. 28. Lowenthal, 3rd ed., p. 94. 29. Lowenthal, 3rd ed., p. 93. 30. Lowenthal, 3rd ed., p. 101. 31. Lowenthal, 3rd ed., p. 101. 32. 50 USC 1801(e): (e) ‘‘Foreign intelligence information’’ means (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) landestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. 33. 50 USC 1805(a)(3). 34. 50 USC 1804(a)(7). 35. ‘‘A Review of the FBI’s Handling of Intelligence Information Prior to the September 11 Attacks,’’ Special Report, November 2004, Released Publicly June 2005, Office of the Inspector General. p. 10. www.usdoj.gov/oig/special/0506/ chapter2.htm. Accessed December 19, 2005. 36. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, PL 107–56, October 26, 2001. Section 218 of PL 107-56, which amends 50 USC 1804(a)(7)(B) and 1823(a)(7)(b) of FISA. 37. This provision amends/rescinds the Memorandum for the Acting Counsel Office of Intelligence Policy and Review, dated August 14, 1997, ‘‘Disclosure of Grand Jury Material to the Intelligence Community.’’ www.usdoj.gov/olc/gjicfinop.htm. Accessed December 21, 2005.

Notes 38. USA Patriot Act, Sec. 215. 39. ‘‘Special Report,’’ Chapter 2, p. 33n52. NSLs are issued in intelligence investigations to obtain telephone and electronic communications records from telephone companies and Internet service providers (pursuant to the Electronic Communications Privacy Act, or ECPA, 18 USC 2709), records from financial institutions (pursuant to the Right to Financial Privacy Act, 12 USC 3414[a][5]), and information from credit bureaus (pursuant to the Fair Credit Reporting Act, 15 USC 1681u and 1681v). Court approval is required before issuance by the FBI. Prior to 9/11, the process for issuing NSLs could take several months. Section 505 of USA Patriot Act. 40. ‘‘Legal Authorities Supporting the Activities of the NSA Described by the President,’’ White Paper by the U.S. Department of Justice, January 19, 2006. Transmitted via letter to Hon. William F. Frist, Senate Majority Leader, from Alberto R. Gonzalez, Attorney General. Accessed January 22, 2007 at www.fas.org. 41. Lowenthal, 3rd ed., p. 54. 42. Lowenthal, 3rd ed., p. 60. 43. Lowenthal, 3rd ed., p. 60. 44. I&W intelligence would also detect threats to allied or coalition military, political, or economic interests or U.S. citizens abroad. It includes warning of enemy actions or intentions; the imminence of hostilities; insurgency; nuclear or nonnuclear attack on the United States, its overseas forces, or allied or coalition nations; hostile reactions to U.S. reconnaissance activities; terrorist attacks; and other similar events. Source: The DOD Dictionary. 45. Lowenthal, 3rd ed., p. 61. 46. EO 12333, Sec. 1.3(b)(4). 47. IRTPA, Sec. 1011. 48. IRTPA, Sec. 1011. 6 USC 121, 482. 49. IRTPA, Sec. 1011, Subsection 102A(f)(1)(B)(i) citing the Homeland Security Act of 2002 (PL 107–296) Secs. 201, 892. 50. EO 13354, National Counterterrorism Center, August 27, 2004. 51. EO 13354, Sec. 5(h). 52. EO 13354, Sec. 3(a). 53. EO 13354, Sec. 3(d). 54. EO 13354, Sec. 5(d). 55. www.fbi.gov/hq/siocfs.htm. 56. Fact Sheet, The Terrorism Screening Center, Department of Justice. Accessed March 22, 2007 at www.fbi.gov/pressrel/pressrel03. 57. DODD 5105.67, Department of Defense Counterintelligence Field Activity, February 19, 2002. 58. National Intelligence Support to Joint Operations, JP 2-02, dated March 9, 2000, pp. 19–20. 59. ‘‘Combined Intelligence Fusion Center Helps Thwart Terrorist Attacks,’’ posted September 13, 2004. www.northcom.mil/index.cfm?fuseaction=news. showstory&storyid=E4D81D56-EC5B-5516-D4A2118029AE1B4A. Accessed December 30, 2005. 60. ‘‘DNI Releases Budget Figure for 2008 National Intelligence Program.’’ ODNI News Release No. 17–08. Dated October 28, 2008.

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Notes 61. Congressional Research Service, CRS Report for Congress: Received through CRS Web, ‘‘The U.S. Intelligence Budget: A Basic Overview,’’ by Stephen Daggett. Order Code RS 21945, dated September 24, 2004. www.fas.org/irp/crs/ RS21945.pdf. Accessed September 17, 2005. 62. Federation of American Scientists. www.fas.org. Accessed September 17, 2005. 63. CRS Report, p. 3. 64. CRS Report, p. 1. 65. Until the Intelligence Reform and Terrorism Prevention Act of 2004, the National Intelligence Program was referred to as the ‘‘National Foreign Intelligence Program (NFIP).’’ 66. Report, House Permanent Select Committee on Intelligence, Intelligence Authorization Act for FY 2005, No. 108–558. 67. Department of Defense Directive (DODD) 5205.9, Joint Military Intelligence Program, April 7, 1995. 68. Lowenthal, Mark M. Intelligence: From Secrets to Policy, 2nd ed. p. 37. 69. CRS, ‘‘Intelligence Issues for Congress,’’ by Richard Best, dated January 9, 2009, p. 6 RL 33539. www.fas.org/sgp/crs/intel/RL35539.pdf. Accessed May 4, 2009. 70. Shane, Scott. ‘‘Official Reveals Budget for U.S. Intelligence,’’ The New York Times, November 8, 2005. 71. ‘‘U.S. Intelligence Budget for 2007 ‘Relatively Flat,’’’ by Shaun Waterman, UPI Homeland and National Security Editor, December 29, 2005. 72. CRS Report, p. 3. Speculation includes a $40 billion budget in ‘‘The Spy Game,’’ Economist, March 19, 2005, Vol. 374 Issue 8418, p. 13, 1p, 1c. Accessed via Academic Search Premier, Rutgers University, Ebscohost, August 20, 2005; and $50 billion in ‘‘Time for a Rethink’’ in Economist; April 20, 2002, Vol. 363 Issue 8269, p. 23, 3p, 1 diagram, 2c. Accessed via Academic Search Premier, Rutgers University, Ebscohost, August 20, 2005. 73. Lowenthal, 2nd ed., p. 37. 74. CRS Report, p. 3. 75. Sec. 203, Authority to Share Criminal Investigative Information, sub-section (a). amends Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure. 76. Sec.203(b). 77. 50 USC 4–3–5d2. 78. Carter, Ashton. ‘‘The Architecture of Government in the Face of Terrorism,’’ in Howitt, Arnold, and Robyn Pangi (eds.), Countering Terrorism: Dimensions of Preparedness, p. 20. 79. ‘‘Special Report,’’ Chapter 2, p. 21 80. ‘‘Special Report,’’ Chapter 2, p. 21 81. ‘‘Special Report,’’ Chapter 2, p. 21 82. ‘‘Special Report,’’ Chapter 2, p. 21, reporting on In Re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F. Supp.2d 611 (2002). 83. ‘‘Special Report,’’ Chapter 2, p. 21, In Re Sealed Case, 310 F.3rd 717 (2002). 84. ‘‘Special Report,’’ Chapter 2, p. 22. 85. Homeland Security Act of 2002, Sec. 892, Facilitating Homeland Security Information Sharing Procedures.

Notes 86. IRTPA, Sec. 1016(a)(2). 87. IRTPA, Sec. 1016(a)(4). 88. IRTPA, sec, 1016(f)—the President appoints a PM for information sharing across the federal government; the President’s memorandum, June 2, 2005 placed the PM in the ODNI; and EO 13388 facilitates the PM’s work through the reorganization of the Information Sharing Council. 89. Exec. Order No. 13388. 90. IRTPA, Sec. 1016(e). 91. Memorandum, dated December 16, 2005. Sec. 2. 92. Memorandum, December 16, 2005, Sec. 2(b). 93. Information Sharing Implementation Plan, prepared by the Program Manager, Information Sharing Environment, November 2006. 94. Information Sharing Implementation Plan, Part 1.1, Sec. 2.3.2. 95. Information Sharing Implementation Plan, Part 1, Sec. 2.3.2, p. 18-19. CHAPTER 6 1. JP 1–02. 2. Doctrine for the Armed Forces of the United States, JP 1. May 14, 2007. Appendix A, p. 1. www.dtic.mil/doctrine.jel/new_pubs/jp1.pdf. Accessed May 1, 2009. 3. JP 1–02. 4. JP 1–02. 5. Joint Doctrine Branch, www.dtic.mil/doctrine/publicationshierarchychart. htm. Accessed October 10, 2006. 6. Joint Doctrine Story, www.dtic.mil/doctrine/joint_doctrine_story.htm. Accessed October 10, 2006. 7. JP 1. 8. JP 1. 9. JP 1, p. xii. JP 1 provides guidance on a multinational unity of effort and an interagency unity of effort. 10. Joint Operations (JP 3–0) is the keystone document of the joint operations series. It provides fundamental principles and doctrine that guide the Armed Forces of the United States in the conduct of joint operations across the range of military operations. www.fas.org. Accessed January 30, 2007. 11. JP 1, p. I-15. 12. JP 3–0, p. VII-9. According to joint doctrine on Operations, counterinsurgency operations include support provided to a government in the military, paramilitary, political, economic, psychological, and civic actions it undertakes to defeat an insurgency. Counterinsurgency operations often include security assistance programs, such as foreign military sales programs, foreign military financing programs, and international military education, and training programs. Such support may also include foreign internal defense (FID). For further guidance on support to counterinsurgency, refer to JP 3–07.1, Joint Tactics, Techniques, and Procedures for Foreign Internal Defense. 13. JP 3–0, p. VII-2. According to joint doctrine on Operations, emergency preparedness (EP) encompasses those planning activities undertaken to ensure DOD processes, procedures, and resources are in place to support the President

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Notes and Secretary of Defense in a designated national security emergency. EP includes COOP and COG. COOP ensures the degree or state of being continuous in the conduct of functions, tasks, or duties necessary to accomplish a military action or mission in carrying out the NMS. COG involves a coordinated effort within each U.S. government branch to ensure its capability to continue minimum essential functions and responsibilities during a catastrophic emergency. COG is dependent upon effective COOP plans and capabilities. In addition to COOP and COG, if the President directs, DOD may be tasked with additional missions related to EP. 14. JP 3–0, p. I-12, p. 42. 15. JP 3–0. p. 31, p. I-1 and from the Glossary, p. 248. This term and its definition are provided for information and are proposed for inclusion in the next edition of JP 1–02 by JP 1. 16. The term ‘‘operational environment’’ replaces the term ‘‘battlespace.’’ JP 3–0, p. 5. 17. JP 3–0, p. 69, p. II-21. 18. Counterinsurgency [COIN], FM 3–24, Marine Corps Warfighting Publication 3–33.5. Headquarters, Department of the Army, and Marine Corps Combat Development Command, Department of the Navy, Headquarters, U.S. Marine Corps, Washington, DC, December 15, 2006. www.usgcoin.org. Accessed May 2, 2009. 19. COIN, FM 3–24, p. 1–4, par. 1–23. 20. COIN, FM 3–24, p. 1–4, par. 1–23. 21. COIN, FM 3–24, p. 1–19, p. 1–106. 22. The definitions of insurgency and counterinsurgency contained in this doctrine are cited from JP 1–02. 23. COIN, FM 3–24, p. 1–1. 24. COIN, Sec. 5–1, p. 5–1. 25. COIN, p. x. 26. COIN, Section 2–2. 27. COIN, Sec. 2–8. 28. COIN, FM 3–24, p. 2–1. 29. COIN, FM 3–24, p. 1–22. 30. COIN, FM 3–24, p. 1–22. 31. COIN, FM 3–24, p. 2–2. The doctrine cites FM 3–0 as guidance for the establishment and maintenance of formal command or support relationships. 32. COIN, FM 3–24, p. 2–2. 33. COIN, Sec. 7–26, p. 7–5, p. 7–6. 34. COIN, Sec. 6–40, p. 6–9. 35. Police are one element of a country’s security forces. COIN, Sec. 6–3, p. 6–1. The term ‘‘security forces’’ includes all HN forces with the mission of protecting against internal and external threats. Elements of the security forces include, but are not limited to, military forces, police, corrections personnel, and border guards (including the Coast Guard). 36. COIN, Sec.6–90, p. 6–19. 37. COIN, Sec.6–91, p. 6–19. 38. COIN, Sec.6–93, p. 6–19. 39. COIN, Sec. 2–20, p. 2–5. 40. COIN, Sec. 2–36, p. 2–8.

Notes 41. COIN, Sec. 6–105, p. 6–21. 42. COIN, Sec. 2–38, p. 2–8. 43. COIN, FM 3–24, p. 2–3. 44. COIN, FM 3–24, p. 2–3. 45. COIN, Sec. 2–46, p. 2–10. 46. COIN, Sec. 2–47, p. 2–10. 47. COIN, Sec. 2–48, p. 2–10. 48. COIN, Sec. 2–53, p. 2–13. 49. COIN, Sec. 2–53, p. 2–13. 50. COIN, Sec. 2–54, p. 2–13. 51. COIN, FM 3–24, p. 2–3. 52. COIN, FM 3–24, p. 2–3. 53. This section does not supersede FM 2–0, FM 34–130/FMFRP 2–32–2, and FM 2–91.4 but instead provides specific guidance for counterinsurgency. COIN, Introduction to Chapter 3, p. 3–1. 54. COIN, Sec. 3–5, p. 3–1. 55. COIN, Sec. 3–1, p. 3–1. 56. COIN, FM 3–24, p. 3–1. 57. Small Wars Manual, U.S. Marine Corps, 1940. Manhattan, Kansas: Sunflower University Press, 1988, 1st Printing, p. 41. 58. COIN, FM 3–24, p. 3–1. 59. COIN, Sec. 3–3, p. 3–1. 60. COIN, Sec. 3–2, p. 3–1. 61. COIN, Sec. 3–123, p. 3–25. 62. COIN, Sec. 3–123, 3–124, 3–125, 3–126, p. 3–25. 63. COIN, Sec. 3–128, p. 3–25. 64. COIN, Sec. 3–130, p. 3–26. 65. COIN, Sec. 3–136, p. 3–26. 66. COIN, Sec. VI, p. 3–33. 67. COIN, Sec. 3–174, p. 3–33. 68. COIN, Sec. 3–177, p. 3–33. 69. COIN, Sec. 3–178. 70. COIN 3–179. 71. COIN, Sec. 3–177, p. 3–33. 72. COIN, Sec. 3–7, p. 3–2. 73. The operational environment is a composite of the conditions, circumstances, and influences that affect the employment of capabilities and bear on the decisions of the commander (JP 1–02). At the tactical and operational levels, defining the operational environment involves defining a unit’s AO and determining an area of interest. The area of interest is an area of concern to the commander, including the area of influence, areas adjacent thereto, and extending into enemy territory to the objectives of current or planned operations. This area also includes areas occupied by enemy forces, which could jeopardize the accomplishment of the mission (JP 1–02). COIN, Sec. 3–12, p. 3–2. 74. Draft COIN, Sec. 3–11, p. 3–2. 75. COIN, Sec. 3–13, p. 3–3. 76. COIN, Sec. 3–14, p. 3–3. 77. COIN, Sec. 3–16, p. 3–3.

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Notes 78. COIN, Sec. 3–19, p. 3–3. 79. COIN, Sec. 3–16, p. XX. 80. COIN, Sec. 3–19, p. 3–4. 81. COIN, Sec. 3–174, p. 3–12. 82. COIN, Sec. 3–174, p. 3–12. 83. COIN, Sec. 3–174, p. 3–33. 84. COIN, Sec. 3–74, p. 3–12, p. 3–75. 85. COIN, Sec. 3–76, p. 3–13. 86. COIN, FM 3–24, Table 3–4, p. 3–17. 87. COIN, 3–77. p. 3–14. 88. COIN, Sec. 3–114, p. 3–20. 89. JP 3–26, p. I-5. 90. National Strategy for Homeland Security, July 2002, p. 18. 91. JP 3–27, p. I-5. 92. JP 3–27, p. II-11, p. III-3. 93. JP 3–27, p. vii. 94. JP 3–27, p. vii. 95. JP 3–27, p. I-2. 96. JP 3–27, p. I-2. 97. ‘‘Defense support of civil authorities’’ is a new term. Although it is approved in the National Response Plan, it is not yet approved in DOD policy. Once it is approved in DOD policy, it will likely replace civil support as the overarching term for assistance to civil authorities. However, in the context of this publication, civil support is still used as the overarching term (JP 3–26, p. i). 98. JP 3–26, p. IV-1. 99. JP 3–28, p. III-2, p. III-3. 100. JP3–28, pp. III-4–7. 101. JP 3–28, p. III-7–11. 102. JP 3–28, p. II-7. 103. JP 3–28, p. II-8. 104. JP-3–28, p. I-1. 105. JP 3–28, p. I-4. 106. The DOD’s understanding of the Commander-in-Chief chain of command is this: The President exercises authority and control of the Armed Forces within DOD through two distinct branches of the chain of command. One branch runs from the President, through SecDef, to commanders of combatant commands for missions and forces assigned to their commands. The other branch, used for purposes other than operational direction of forces assigned to the combatant commands, runs from the President through SecDef to Secretaries of the Military Departments. Military Departments, organized separately, operate under the authority, direction, and control of SecDef. Secretaries of the Military Departments exercise authority through their respective Service Chiefs over their forces not assigned to the combatant commanders (JP 3–26, p. I-17). The CJCS is not in the chain of command. 107. JP 3–26, p. vii. 108. JP 3–26, p. I-17. 109. JP 3–26, p. II-5. 110. JP 3–26, p. II-6, p. II-7.

Notes 111. JP 3–28, p. II-9. 112. JP, 3–26, p. II-15. 113. JP 3–26, p. I-5. 114. JP 3–26, p. II-15 citing HSPD-1, Organization and Operation of the Homeland Security Council. 115. JP 3–28, p. II-8. 116. JP 3–26, p. II-16. See also JP 3-08, Interagency Coordination During Joint Operations. 117. JP 3–28, p. I-5. 118. JP 3–28, p. II-15, II-16. 119. JP 3–28, p. III-3. 120. JP 3–28, p. IV-13. 121. JP 2–0. 122. JP 2–0, p. I-23–25. 123. JP 3–0, p. xxvi, p. 28. 124. JP 2–0, p. I-10. 125. JP 2–0, p. I-21. 126. JP 2–0, p. I-22. 127. JP 2–0, p. I-22. 128. JP 2–0, p. I-25. 129. JP 2–0, p. vi, p. I-3. 130. JP 2–0, p. vi. 131. JP 2–0, p. III-12–14. 132. JP 2–0, p. I-1. 133. JP 2–0, p. I-8. 134. JP 2–0, p. II-11. 135. JP 2–0, Chapter 4. 136. JP 2–0, p. viii. 137. JP 2–0, p. v-i. 138. JP 2–0, p. vii. 139. 16A Am. Jur. 2d 322, p. 262n64, n65.

CHAPTER 7 1. According to the DHS Web site, as of February 2009 there were 58 State and Local Fusion Centers. However, DHS and DOJ recognize 70 fusion centers. Testimony by Robert Riegle, State and Local Program Office, Office of Intelligence and Analysis, before the House Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, ‘‘The Future of Fusion Centers: Potential Promise and Dangers,’’ April 1, 2009. 2. It is worth noting that President Bush had two national security paradigms from which to choose a response to the 9/11 attacks; he chose war and the National Security Act of 1947 as a starting point. The rest of the world responds to terrorism using a different national security paradigm—terrorism is a lawenforcement matter, like the U.S. response in the 1992 attacks on the World Trade Center.

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Notes 3. See Appendix R for select section of the findings and recommendations of the Joint Inquiry, the 9/11 Commission, and the WMD Commission as they relate to the inadequacy of the intelligence apparatus in the United States. 4. CRS Report for Congress, ‘‘Fusion Centers: Issues and Options for Congress,’’ by John Rollins. Updated January 18, 2008. Order Code RL 34070. www.fas.org. 5. CRS, ‘‘Fusion Centers’’ summary page 1. 6. 6 USC 1021 et seq; Implementing the 9/11 Commission Recommendations Act. PL 110-53, Aug. 3, 2007, 121 STAT. 323, Subtitle B, Sec. 210A(j)(1). 7. Id. Sec. 210A(a). 8. Excerpt from Fusion Center Guidelines: Executive Summary, DOJ-OJP, GWIG, p. 3. 9. Excerpt from Fusion Center Guidelines: Executive Summary, DOJ-OJP, GWIG. 10. Id., pp. 3–8. 11. FN, App IV—Summary of State and Local Fusion Centers GAO Contacted, p. 53. Provides a Description of each one. GAO, Report to Congressional Committee. Homeland Security—Federal Efforts are Helping to Alleviate Some Challenges Encountered by State and Local Information Fusion Centers.’’ GAO08035, October 2007. 12. CRS Report for Congress. ‘‘Fusion Centers: Issues and Options for Congress.’’ Updated, January 18, 2008, John Rollins. Order Code RL34070, p. 2. 13. Sources: Web sites for DOJ, Global, FC guidelines. 14. Title VII, Section 701, amends the Omnibus Crime Control and Safe Streets Act of 1968. Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act) Act of 2001 (Page 115 STAT. 272) Public Law 107-56 107th Congress. 15. The Homeland Security Act of 2002, Sec. 892, (f)(3)(A)–(F). The term ‘‘state and local personnel’’ means any of the following persons involved in prevention, preparation, or response for terrorist attack: (A) State Governors, mayors, and other locally elected officials. (B) State and local law enforcement personnel and firefighters. (C) Public health and medical professionals. (D) Regional, State, and local emergency management agency personnel, including State adjutant generals. (E) Other appropriate emergency response agency personnel. (F) Employees of private-sector entities that affect critical infrastructure, cyber, economic, or public health security, as designated by the Federal Government in procedures developed pursuant to this section. 16. The Homeland Security Act of 2002, Sec. 892, (c)(2)(a), (b), and (c). 17. Implementing Recommendations of the 9/11 Commission Act of 2007. PL 110–53. Title 5. August 3, 2007. 18. Keynote Address by Under Secretary for Intelligence and Analysis Charles Allen at the 2008 Annual International Association of Law Enforcement Intelligence Analysts and Law Enforcement Intelligence Unit Conference. Released

Notes April 8, 2008, Boston, Massachusetts. www.dhs.gov/xnews/testimony/testimony_ 1207683448574.shtm. Accessed April 30, 2008. 19. President Bush’s 2003 State of the Union Address mentioned TTIC. Fact Sheet: ‘‘Strengthening Intelligence to Better Protect America,’’ February 14, 2003. Office of the Press Secretary, the White House. Terrorism Threat Integration Center at CIA. Accessed May 8, 2008. This Fact Sheet states: The Director of Central Intelligence, the Director of the FBI, working with the Attorney General, and the Secretaries of Homeland Security, Defense, and State have developed plans for the nation’s first unified Terrorist Threat Integration Center. TTIC will have unfettered access to all terrorist threat intelligence information—from raw reports to finished analytic assessments—available to the U.S. Government . . . . The Department will be a full partner in TTIC. TTIC will provide the Department with a full and comprehensive picture of the terrorist threat that will inform the actions of the Department. And, DHS, working hand in hand with the FBI, will be responsible for ensuring that threat information, including information produced by the Center, is disseminated quickly to the public, private industry, and state and local governments as appropriate. 20. Presidential Memorandum, for the Heads of Executive Departments and Agencies. December 16, 2005. Subject: Guidelines and Requirements in Support of the Information Sharing Environment. 21. FBI, www.fbi.gov. Testimony September 27, 2007, by Michael C. Mines, Deputy Assistant Director, Director of Intelligence. Testimony April 17, 2008, by Jack Tomarchio, Principal Deputy Assistant Secretary, Office of Intelligence and Analysis, U.S. Department of Homeland Security, before the Senate Homeland Security and Government Affairs Committee, Ad Hoc Subcommittee on State and Local Private Sector Preparedness and Integration. 22. R. David Paulsen, Director, FEMA, addressing the National Fusion Center Conference, Destin, FL, March 6, 2007. In addition, DHS Intelligence and Analysis reports that there are three goals for FEMA: to share fusion center information with FEMA Emergency Operations Centers, to develop a Fire Service Intelligence enterprise with the NYPD and other state and local agencies, and to connect fusion centers to the National Operations Center. Source: FEMA decision chart. CHAPTER 8 1. JP 3–26, p. II-7. 2. JP 1, p. 75, p. VI-1. 3. 42 USC 5195. 4. 50 USC 402(a). 5. 50 USC 402(a). 6. 50 USC 402(a). 7. EO 12333, Section 1.2. 8. 50 USC 402(b)(2).

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Notes 9. 50 USC 402(h). 10. 50 USC 402(i). 11. Pfaltzgraff, Robert L, Jr. and Jacquelyn K. Davis. National Security Decisions: The Participants Speak. Lexington, MA: Lexington Books, 1990, p. 3. 12. National Security Presidential Directives, www.fas.org/irp/offdocs/nspd/. Accessed September 24, 2005. 13. NSPD 1, Organization of the National Security Council System, dated February 13, 2001. Formally approved for release by the National Security Council staff on March 13, 2001. 14. EO 13228 Sec. 1, dated October 8, 2001 established the Office of Homeland Security and the Homeland Security Council. 15. EO 13228, Sec. 3. 16. EO 13228, Sec. 1. 17. EO 13228, Sec. 3(a). 18. EO 13228, Sec. 3(b). 19. Established by EO 13228 and implemented by HSPD-1, dated October 29, 2001. 20. EO 13228, Sec. 5(a). 21. EO 13228, Sec. A. 22. Homeland Security Presidential Directive 1, (HSPD-1), Sec. B, Organization and Operation of the Homeland Security Council, October 29, 2001. 23. HSPD-1, Sec. C. and EO 13228, Sec. 5(b). 24. HSPD-1, Sec. D. 25. Homeland Security Council EO 13260, dated March 21, 2002, established the President’s Homeland Security Advisory Council (PHSAC) and Senior Advisory Committees for Homeland Security. This was rescinded by EO 13286, Amendment of Executive Orders, and other actions in connection with the transfer of certain functions to the Secretary of Homeland Security, February 28, 2003, effective March 2003. 26. EO 13260, Sec. 1(a). 27. EO 13260. 28. EO 13260, Sec. 1(b). 29. EO 13260, Sec. 1(c). 30. EO 13286, Amendment of Executive Orders, and Other Actions in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security. 68 Fed. Reg. 10619 (March 5, 2003). 31. 10 USC 118(a). 32. DOD Reorganization Act, September 1988, a.k.a, the Goldwater-Nichols Act. Since then, DODD 5100.1 was promulgated in April 1987, and JCS Pub 2 in December 1986. 33. Joint Doctrine Development process. www.dtic.mil/doctrine/joint_doctrine_development.htm. Accessed June 13, 2006. 34. ‘‘Irregular Warfare’’ is a term the Secretary of Defense used and the JCS describes it as having ten aspects. Two aspects are insurgency and counterinsurgency. COIN, Sec. 1–2, p. 1–1. 35. Dated August 4, 2006, produced by the Joint Warfighting Center of the Joint Forces Command, at the request of the Joint Staff.

Notes 36. Pertinent data was gathered from federal documents, including the National Military Strategy, National Defense Strategy, and National Security Strategy, approved joint publications, emerging joint doctrine, Department of Defense directives, Chairman of the Joint Chiefs of Staff instructions, North Atlantic Treaty Organization publications, service doctrine, and other sources. Analysis of the data was conducted to identify doctrinal treatment of IW and its aspects, and identify any joint doctrinal voids. Conclusions were drawn regarding the doctrinal implications of IW. Finally, recommendations were made regarding the joint doctrinal treatment of IW and courses of action proposed for resolving identified joint doctrinal voids. 37. EO 12656, Sec. 101(a). 38. CRS Report RL 31857. 39. Hazards refer to major disasters and emergencies. 42 USC 5195a, 5195b. 40. EO 12148, Sec. 2–204. 41. EO 12148, Sec. 2–205. 42. The Critical Infrastructure Protection Act of 2001. 42 USC 5195c. 43. Homeland Security Presidential Directive 5 (HSPD-5), Management of Domestic Incidents, February 28, 2003, par. 15. 44. HSPD-5, par. 16. 45. Homeland Security Presidential Directive 8 (HSPD-8), National Preparedness, December 17, 2003. 46. HSPD-5, Management of Domestic Incident, February 28, 2003. par. 3. 47. PDD-39, U.S. Policy on Counterterrorism. 48. JP 3–26, p. IV-8. 49. HSPD-5, par. 4. 50. HSPD-5, par. 4. 51. PDD-NSC-67 (U), ‘‘Enduring Constitutional Government and Continuity of Government Operations,’’ October 21, 1998. www.fas.org/irp/offdocs/pdd/pdd67.htm. Accessed March 3, 2007. PDD 67 replaces the Bush Administration’s NSD 69 ‘‘Enduring Constitutional Government’’ of June 2, 1992, which in turn succeeded NSD 37 ‘‘Enduring Constitutional Government’’ of April 18, 1990 and NSDD 55 ‘‘Enduring National Leadership’’ of September 14, 1982.

CHAPTER 9 1. Taplin, Winn. ‘‘Six General Principles of Intelligence,’’ in International Journal of Intelligence and Counterintelligence, 3:4, Winter 1989, p. 4, Lowenthal reading list. 2. Taplin, p. 8. 3. Taplin, p. 16. 4. DeYoung, Karen. ‘‘Intelligence Community to Reshape Personnel Practices.’’ Washington Post, April 12, 2007, p. A-11. Accessed via Rutgers University Library, Lexis-Nexis Academic, April 14, 2007. 5. Office of the Director of National Intelligence, Public Affairs Office. ODNI News Release No. 12–07. ‘‘DNI Announces 100 Day Plan for Integration and Collaboration.’’ April 11, 2007. The plan is available at www.dno.gov.

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Notes APPENDIX B 1. PCA was made applicable to the Navy and Marine Corps by 10 USC 375; DOD Directive 5525.5(c), SECNAVIST 5820.7B. 2. 32 CFR 215.4(b). 3. 32 CFR 215.4(c). 4. 32 CFR 215.4(c)(1). 5. 32 CFR 215.4(c)(1)(i). 6. 32 CFR 215.4(c) (1)(ii). 7. 32 CFR 215.4(c)(2)(i). 8. 10 USC 331, 332, 333. 9. 10 USC 331; 32 CFR 215.4(c)(2)(i)(a). 10. 10 USC 332; 32 CFR 215.4(c)(2)(i)(b). 13. 10 USC 333; 32 CFR 215.4(c)(2)(i)(c). 14. 10 USC 375. See also United States v. Red Feather, 392 F. supp. 916 (1975, DC SD). 15. State v. Nelson (1979) 298 NC 573, 260 SE2d 629, cert den’d (1980) 446 U.S. 929, 64 L.Led 2d 282, 100 S. Ct. 1867. 16. United States v. Red Feather, 392 F. supp. 916 (1975, DC SD). APPENDIX D 1. ACLU v. NSA, case nos. 06-2095, 06-2140, July 6, 2007. www.ca6. uscourts.gov. Accessed May 2, 2009. 2. ACLU, et al. v. NSA, et al., docket no. 07-468, October 7, 2007. www. supremecourtus.gov. Accessed May 2, 2009. 3. Al-Haramain Islamic Foundation v. President George W. Bush, case no. 0636083, November 15, 2007. www.ca9.uscourts.gov. Accessed May 2, 2009. 4. Legislative history for HR 6304. www.thomas.gov. Accessed May 2, 2009. For additional information, see CRS Report, ‘‘The Foreign Intelligence Surveillance Act: An Overview of Selected Issues,’’ by Elizabeth B. Bazan, RL 34279, updated July 7, 2008. APPENDIX G 1. IRTPA, Section 1011, subsection 102A(a)(1)(A). EO 122333, Sec. 1.3, Sec. 1.7(j). 2. IRTPA, Section 1011, subsection 102A(a)(1)(B). 3. The term ‘‘National Intelligence Program’’ refers to all programs, projects, and activities of the intelligence community, as well as any other programs of the intelligence community designated jointly by the Director of Central Intelligence and the head of a U.S. department or agency or by the President. Such term does not include programs, projects, or activities of the military departments to acquire intelligence solely for the planning and conduct of tactical military operations by U.S. Armed Forces. 50 USC 401a(6). 4. Section 1011, subsection 103A(c). 5. EO 12333, Sec. 1.10

Notes 6. Department of Defense Directive 5240.1 ‘‘DOD Intelligence Activities,’’ April 25, 1988. Sec. 3.4, DOD Intelligence Components. 7. DODD 5240.1, Sec. 5.7. EO 12333, Sec. 1.7(c). 8. DODD 5100.20, ‘‘The National Security Agency and the Central Security Service,’’ dated December 23, 1971, Sec. 2.2. 9. DODD 5100.20 Sec. 2.3. 10. DODD 5100.20, Sec. 5.2. 11. DODD 5100.20, Sec. 5.4. 12. IRTPA. 13. DODD 5100.20, Sec. 5.6. 14. DODD 5100.20, Sec. 5.5. 15. EO 12333, Sec. 1.7(c). 16. 50 USC 401a; EO 12333, Sec. 1.7(b); 10 USC 193; DODD 5105.21; DODD 5240.1, Department of Defense Directive 5105.21, Defense Intelligence Agency, February 18, 1997; Army Regulation 381–10, Army Regulation 381–10, U.S. Army Intelligence Activities, July 1, 1984. 17. The Defense Intelligence Agency, National Geospatial-Intelligence Agency (formerly NIMA), and National Reconnaissance Agency (NRA) are considered combat-support agencies and are supervised by the Secretary of Defense by delegation jointly to a civilian in the Office of the Secretary and to the Chairman of the Joint Chiefs of Staff. See the definition of ‘‘combat-support agencies’’ in 10 USC 193 and of ‘‘supervision’’ in 10 USC 192. 18. DODD 5105.21, Sec. 6.1. 19. DODD 5105.21, Sec. 6.1. 20. DODD 5105.21, Sec. 6.1. 21. DODD 5105.21, Sec. 6.1.5. 22. EO 12333, Sec. 1.7(b)(1), (2). 23. EO 13355, ‘‘Strengthened Management of the Intelligence Community,’’ dated August 27, 2004, Sec. 6(k)(iii). EO 12333, Sec. 1.7(e). 24. 10 USC 441(a). 25. 10 USC 441(b)(3). 26. Department of Defense Directive 5105.60, ‘‘National Imagery and Mapping Agency (NIMA),’’ dated October 11, 1996, Sec. 6. 27. Congressional Hearing Testimony, Peter B. Teets, Under Secretary for the Air Force. www.nro.gov/speeches/fy04nss_posture_statement.pdf. Accessed January 2, 2006. 28. Teets Testimony. 29. EO 12333, Sec. 1.7(d)(1). 30. EO 12333, Sec. 1.7(f). DODD 5240.1, ‘‘DOD Intelligence Activities,’’ Sec. 3.4 ‘‘DOD Intelligence Components.’’ Dated April 25, 1988. 31. DODD 5240.1, 3.4.4. 32. DODD 5240.1, 3.4.8. 33. DODD 5240.1, 3.4.5. 34. DODD 5240.1, 3.4.9. 35. DODD 5240.1, 3.4.10. 36. DODD 5240.1, 3.4.13. 37. DODD 5240.1, 3.4.6.

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Notes 38. DODD 5240.1, 3.4.11. 39. DODD 5240.1, 3.4.12. 40. DODD 5240.1, 3.4.14. 41. DODD 5240.1, 3.4.15. 42. Department of Defense Directive 5143.01, ‘‘Under Secretary of Defense for Intelligence (USD(I)),’’ November 23, 2005, Enclosure 2, Definitions, Sec. E2.1.4, ‘‘Defense Intelligence Components.’’ 43. DODD 5143.01, 3.4.16. 44. DODD 5105.67, Department of Defense Counterintelligence Filed Activity (CIFA), February 19, 2002. 45. DODD 5240.1, Section 3.5. 46. The Deputy Chief of Staff to the U.S. Department of Army is a G-2. Each of the Armies in the Department also has a G-2. 47. How the Army Runs (HTAR): A Senior Leader Reference Handbook, 25th Edition, 2005–2006 (updated November 17, 2005). carlisle-www.army.mil/ usawc/dclm/linkedtextchapters.htm. Accessed December 28, 2005. HTAR, Sec. 18–9(a), p. 412. 48. Fact Sheet, U.S. Army Intelligence & Security Command. www.inscom.army. mil. Accessed March 22, 2007. 49. DODD 5100.1, Sec. 6.6.2.1. 50. DODD 5100.1, 3.4.14. 51. DODD 5100.1, 3.4.15. 52. Department of Defense Directive 5143.01, ‘‘Under Secretary of Defense for Intelligence (USD(I))’’ November 23, 2005. Enclosure 2, Definitions, Sec. E2.1.4, ‘‘Defense Intelligence Components.’’ 53. DODD 5143.01, 3.4.16. 54. DODD 5105.67. 55. DODD 5105.67. 56. DODD 5105.67, Section 3. 57. DODD 5240.1, Section 3.5. 58. Memorandum between the U.S. Attorney General and the Director of National Intelligence, as reported in The President’s Fiscal Year (FY) 2007 Budget Request for the Drug Enforcement Administration, Before the U.S. Senate Committee on Appropriations, Subcommittee on Justice, Science, and Related Agencies, April 5, 2006 (Statement of the Hon. Karen P. Tandy, Administrator, Drug Enforcement Administration). www.usdoj.gov/dea/pubs/cngrtest/ct040506.html. Accessed April 13, 2007. 59. Id. Title 21 refers to 21 USC 801 et seq., Drug Abuse Prevention and Control. 60. www.fbi.gov/intelligence. Accessed March 22, 2007. 61. Mission Statement, www.fbi.gov/intelligence/di_mission.htm. Accessed March 22, 2007. 62. Excerpt of the FBI Mission Statement. www.fbi.gov/hq.htm. Accessed December 23, 2005. 63. EO 12333, Sec. 1.4, 1.7(g), 1.13. 64. Department of Defense Directive 3025.15, ‘‘Military Assistance to Civil Authorities.’’ February 18, 1997. Sec. 5.6.

Notes 65. ‘‘Independent NNSA Security Review,’’ dated May 2, 2005, conducted by Richard W. Mies, Admiral USN (Retired) for NNSA Administrator, Ambassador Linton Brooks. www.nnsa.doe.gov/readingroom.htm. Accessed December 9, 2005. 66. U.S. Department of Energy, National Security Web site, www.energy.gov/ nationalsecurity/index.htm. Accessed January 6, 2006. 67. EO 12333, Sec. 1.7(i). 68. EO 12333, Sec. 1.12(b). 69. EO 12333, Sec. 1.12(a). 70. DOE Order 5670.1A, Management and Control of Foreign Intelligence, dated January 15, 1992. Sec. 1. 71. DOE Order 5670.1A, Sec. 3(c), citing SEN-6D-91, Departmental Organizational And Management Arrangements, dated 5–16–91. 72. DOE Order 475.1, Counterintelligence, December 10, 2004. Sec. 4(b)(1). 73. DOE Order 475.1, Sec. 4(c)(1). 74. ‘‘An original bill to authorize appropriations for fiscal year 2000 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe personnel strengths for such fiscal year for the Armed Forces, and for other purposes.’’ October 5, 1999. PL 106–65. Created the National Nuclear Security Administration. Sec. 3203. 75. NNSA’s FY 2005 Budget Overview. www.nnsa.doe.gov/readingroom.htm. Accessed December 9, 2005. 76. Except for the functions of the Deputy Administrator for Naval Reactors under EO 12344. 77. www.nnsa.doe.gov/aboutnnsa.htm. Accessed December 9, 2005. 78. Testimony of Linton F. Brooks, Under Secretary for Nuclear Security and Administrator, National Nuclear Security Administration Committee on Energy and Commerce, Subcommittee on Oversight and Investigations Hearing on NNSA Security, March 18, 2005. www.nnsa.doe.gov/readingroom.htm. Accessed December 9, 2005. 79. Chapman, Bert. Researching National Security and Intelligence Policy. Washington, DC: CQ Press, 2004, pp. 76–96. 80. Statement of Willie T. Hulon, Deputy Assistant Director Counterterrorism Division, Federal Bureau of Investigation before the House Government Reform Subcommittee on Technology, Information Policy, Intergovernmental Relations and the Census, July 13, 2004. www.fbi.gov/congress/congress04/bald071304.htm. Accessed December 9, 2005. 81. Shanor and Hogue, p. 38. 82. Bureau of Intelligence and Research, Department of State, www.state.gov/ s/inr/. Accessed January 2, 2006. EO 12333, Sec. 1.7(i). 83. EO 12333, Sec. 1.7(i), 1.8. 84. EO 12333, Sec. 1.7(i), 1.9. 85. Treasury Order 105–17, Establishment of the Office of Terrorism and Financial Intelligence, April 28, 2004. Sec. 2a. 86. Treasury Order 105–17, Sec 2a(i). 87. Homeland Security Act of 2002, PL 107–296, establishing the Department of Homeland Security. 88. EO 12333, Sec. 1.7(i), Sec. 1.11.

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Notes 89. On December 28, 2001, the National Security Act of 1947 was amended to make it a member of the intelligence community. EO 12333, Sec. 1.7(h). 90. Homeland Security Act of 2002, PL 107–296. 91. 14 USC 3. 92. 14 USC 3. 93. U.S. Coast Guard Maritime Intelligence Fusion Center Atlantic Web site. www.uscg.mil/lantarea/mifclant/commandinfo.htm. Accessed March 22, 2007. 94. DODD 5240.1, ‘‘DOD Intelligence Activities,’’ Section 3.4 ‘‘DOD Intelligence Components.’’ 95. DOE Order 5670.1A, Management and Control of Foreign Intelligence, dated January 15, 1992. Sec. 1. It is responsible for coordination of all DOE intelligence-related activities. Id., Sec. 3(c), citing SEN-6D-91, Departmental Organizational and Management Arrangements, dated May 16, 1991. 96. DOE Order 475.1, Sec. 4(b)(1). Office of Counterintelligence develops counterintelligence policy for DOE and NNSA. The CI Program is composed of the DOE Office of Counterintelligence and the NNSA Office of Defense Nuclear Counterintelligence (ODNCI). 97. Testimony of Linton F. Brooks, Under Secretary for Nuclear Security and Administrator, National Nuclear Security Administration Committee on Energy and Commerce, Subcommittee on Oversight and Investigations Hearing on NNSA Security, March 18, 2005. www.nnsa.doe.gov/aboutnnsa.htm. Accessed December 9, 2005.

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Bibliography Federal Crimes, generally; Chapter 11B, relating to Chemical Weapons; Chapter 37, relating to Espionage and Censorship; Chapter 45, relating to Foreign Relations; Chapter 113B, relating to Terrorism; Title 21, Food and Drugs; Chapter 13, Drug Abuse Prevention and Control. United States Constitution. Pmbl., Art. I, Art. II, Art. III, Art. IV, Amend. X. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 [USA Patriot Act]. PL 107–56 (October 26, 2001). War Powers Resolution. 50 USC 1541–1548. PL 93–148. (November 7, 1973). NEWSPAPERS Associated Press. ‘‘Antiterrorism Efforts Are Faulted.’’ New York Times. November 29, 2007, p. 28. Baker, Al and William K. Rashbaum. ‘‘3 Held Overseas in Plan to Bomb Hudson Tunnels.’’ New York Times, July 8, 2006, p. A1. Belluck, Pam. ‘‘States and Cities Must Hunt Terror Plots, Governor Says.’’ New York Times, December 15, 2004, pp. A22–A22. Bilefsky, Dan. ‘‘Belgians Say Banking Group Broke European Rules in Giving Data to U.S.’’ New York Times, September 29, 2006, p. A10. Bilefsky, Dan. ‘‘Panel Says Bank Group, Aiding U.S., Broke Law.’’ New York Times, November 23, 2006, p. A22. Block, Robert. ‘‘Criminal Intent: An L.A. Police Bust Shows New Tactics for Fighting Terror; Officers Use Local Laws to Arrest Small Offenders with HighRisk Potential; Foiling a Chechen ‘Charity.’’’ Wall Street Journal, December 29, 2006, p. A1. Burns, John F. and Kirk Semple. ‘‘Iraq Insurgency Has Funds to Sustain Itself, U.S. Finds.’’ New York Times, November 26, p. A1. Christie, Rebecca and Robert Block. ‘‘Politics and Economics: New Plan Aims to Better Share Terrorism Data; State and Local Agencies Praise Increased Access, But Worry About Funding.’’ Wall Street Journal, November 22, 2006, p. A10. ‘‘Counterterrorism Centers in USA.’’ USA Today, July 24, 2007. Cowell, Alan. ‘‘Blair Says Homegrown Terrorism is Generation-Long Struggle.’’ New York Times, November 11, p. A6. Cowell, Alan. ‘‘Threats and Responses: Bridging Two Worlds, and Muslims’ Status in Question: Top Police Spar in London over Muslims as ‘Victims.’’’ New York Times, August 20, 2006, p. A4. Daly, Terence. ‘‘Killing Won’t Win This War.’’ New York Times, August 21, 2006, p. A17. Article is not about domestic U.S. COIN. DeYoung, Karen. ‘‘Intelligence Community to Reshape Personnel Practices.’’ Washington Post, April 12, 2007, p. A-11. Gordon, Michael. ‘‘Military Hones Its Strategy on Insurgency.’’ New York Times, October 5, p. A1. Hall, Mimi. ‘‘Feds Move to Share Intelligence Faster.’’ USA Today, July 27, 2006. ——— ‘‘State-Run Sites Not Effective vs. Terror.’’ USA Today, July 24, 2007, p. 1.

Bibliography Keller, Ben. ‘‘De-fense! De-fense! De-fense!’’ [Op-Ed.] New York Times, April 19, 2003, p. A13. Landler, Mark. ‘‘Threats and Response: Decoding Details, in Britain, in Germany and at Airports: Bomb Plot Shocks Germans into Antiterrorism Debate.’’ New York Times, August 22, 2006, p. A8. Lichtblau, Eric. ‘‘Bush Predicts Appeals Court Will Lift Ban on Wiretaps.’’ New York Times, August 19, 2006, p. A10. ——— ‘‘Conflict of Interest is Raised in Eavesdropping Ruling.’’ New York Times, August 23, 2006, p. A19. ——— ‘‘The Courts: Study Finds Sharp Drop in the Number of Terrorism Cases Prosecuted.’’ New York Times, September 4. ——— ‘‘Despite a Year of Ire and Angst, Little Has Changed on Wiretaps.’’ New York Times, November 25, 2006, p. A1. ——— ‘‘House Approves Power for Wiretaps Without Warrants.’’ New York Times, September 29, 2006, p. A18. ——— ‘‘Justice Official Opens Spying Inquiry.’’ New York Times, November 28, 2006, p. A19. Licthblau, Eric and Mark Mazzetti. ‘‘Military Documents Hold Tips on Antiwar Activities.’’ New York Times, November 21, 2006, p. A18. Lichtblau, Eric and Scott Shane. ‘‘Congressman Says Program was Disclosed by Informant.’’ New York Times, July 10, 2006, p. A11. Lichtblau, Eric and Kate Zernike. ‘‘Panel in Senate Backs Bush Plan for Monitoring.’’ New York Times, September 14, 2006, p. A1. Liptak, Adam. ‘‘Judge Allows Islamic Group to Challenge Wiretapping.’’ New York Times, September 8, 2006, p. A20. ——— ‘‘Judge Hears Arguments on Federal Spying Program.’’ New York Times, September 6, 2006. ——— ‘‘Many Experts Fault Reasoning of Judge in Surveillance Ruling.’’ New York Times, August 19, 2006. Marr, Melissa. ‘‘A General’s New Plan to Battle Radical Islam.’’ Wall Street Journal, September 2–3, 2006, p. A1 and A4. ‘‘Mayor Assures Detroit’s Readiness for Emergency.’’ Michigan Chronicle, October 12–October 18, 2005. Mazzetti, Mark. ‘‘Military Role in U.S. Embassies Creates Strains, Report Says.’’ New York Times, December 20, 2006, p. A8. ——— ‘‘Spy Agencies Say Iraq War Worsens Terrorism Threat.’’ New York Times, September 24, 2006, p. A1. Noble, Ronald K. ‘‘Op-Ed: All Terrorism is Local.’’ New York Times, August 13, 2006, p. A16. ‘‘Opinion: Hokum on Homeland Security.’’ New York Times, August 20, 2006, p. A9. ‘‘Quizzing Robert Gates,’’ New York Times, December 4, 2006, p. A25. Sanger, David E. ‘‘News Analysis: Waging the War on Terror: Report Belies Optimistic View.’’ New York Times, September 27, 2006, p. A16. ——— ‘‘Week in Review: Does Calling It Jihad Make It So?’’ New York Times, August 13, 2006, pp. 1 and 4. Shane, Scott, ‘‘Official Reveals Budget for U.S. Intelligence,’’ New York Times, November 8, 2005, p. 18.

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Bibliography ——— ‘‘Threats and Responses: Perhaps Linked, But Not Controlled: Terrorism Experts Say Focus on Al Qaeda Misses a Broader Threat.’’ New York Times, August 13, 2006. Shanker, Thom. ‘‘General Discusses Goals of His Return to Iraq.’’ New York Times, November 20, 2006, p. A15. ——— ‘‘Pentagon Hones Its Strategy on Terrorism.’’ New York Times, February 5, 2006. ——— ‘‘Week in Review: A New Enemy Gains on the U.S.’’ New York Times, July 30, 2006, p. 1. Slackman, Michael. ‘‘Iran Hangs in Suspense as War Offers New Strength, and Sudden Weakness.’’ New York Times, July 30, 2006, p. A12. ‘‘The Spy Game,’’ Economist, March 19, 2005, p. 13. ‘‘Time for a Rethink,’’ Economist, April 20, 2002, p. 23. Tyler, Patrick E. ‘‘Reaction, Then Action.’’ New York Times, June 7, 2002, p. A1. Waterman, Shaun, ‘‘U.S. Intelligence Budget for 2007 ‘Relatively Flat.’’’ UPI Homeland and National Security Editor, December 29, 2005. Wong, Edward. ‘‘The Struggle for Iraq: News Analysis. A Matter of Definition: What Makes a Civil War, and Who Decides It So?’’ New York Times, November 26, 2006. LAW REVIEW ARTICLES Bay, Norman C. ‘‘Executive Power and the War on Terror.’’ Denver University Law Review, 83 Denv. U.L. Rev. 335, 2005. Delahunty, Robert J. ‘‘Presidential Power and International Law in a Time of Terror.’’ 4 Regent J. Int’l L. 175, 2006. Demaine, Linda J. and Rosen, Brian. ‘‘Process Dangers of Military Involvement in Civil Law Enforcement: Rectifying the Posse Comitatus Act.’’ NYU L. Rev. March 23, 2006. Drumbl, Mark A. ‘‘‘Lesser Evils’ in the War on Terrorism.’’ Case Western Reserve Journal of International Law, Spring 2004, Vol. 36, Issue 2/3, p. 335–348. Forman, James, Jr. ‘‘A Little Rebellion Now and Then is a Good Thing.’’ Michigan Law Review, May 2002, Vol. 100, Issue 6, p. 1408. Garrett, Brandon L. and Tania Tetlow. Thirty-Sixth Annual Administrative Law Issue: ‘‘Criminal Justice Collapse: The Constitution after Hurricane Katrina.’’ 56 Duke L.J. 127, October, 2006. Kaytal, Neal Kumar. ‘‘Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within.’’ 115 Yale L.J. 2314, 2006. Levinson, Sanford. Symposium: Emergency Powers and the Constitution. ‘‘Constitutional Norms in a State of Permanent Emergency.’’ Georgia Law Review. 40 Ga. L. Rev. 699, Spring, 2006. Lininger, Tom. Symposium: Spies, Secrets, and Security. ‘‘The New Law of Intelligence: Oversight of Intelligence: Federalism and Antiterrorism Investigations.’’ 17 Stan. L. & Pol’y Rev 391, 2006. Lyon, Rod. ‘‘Civil Military Relations in an Age of Terror.’’ 2004 Fulbright Symposium. Civil Military Cooperation and the War on Terror. University of Queensland, Australia. July 5–7, 2004.

Bibliography Maogoto, Jackson Nyamuya. ‘‘Walking an International Law Tightrope: Use of Military Force to Counter Terrorism—Willing the Ends.’’ 31 Brooklyn J. Int’l L. 405, 2006. McCall, Madhavi M. and Michael A. McCall. ‘‘Chief Justice William Rehnquist: His Law-and-Order Legacy and Impact on Criminal Justice.’’ 39 Akron L. Rev. 323. 2006. Pham, Huyen. ‘‘The Constitutional Right Not to Cooperate.’’ 74 U. Cinn. L. Rev. 1373. 2006. Purcell, Jr., Edward A. ‘‘Evolving Understandings of American Federalism: Some Shifting Parameters.’’ 50 N.Y.L. Sch. L. Rev. 635, 2005/2006. Romano, John F. ‘‘State Militias and the United States: Changed Responsibilities for a New Era.’’ 56 A.F.L. Rev. 233, 2005. Schapiro, Robert A. The 2006 Randolph W. Thrower Symposium: ‘‘Interactive Federalism: Filling the Gaps? From Dualist Federalism to Interactive Federalism,’’ 56 Emory L.J. 1, 2006. Scharf, Michael P. ‘‘Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and Prospects.’’ Case Western Reserve Journal of International Law, Spring 2004, Vol. 36 Issue 2/3, p. 359–374. Schmid, Alex. ‘‘Terrorism—The Definitional Problem.’’ Case Western Reserve Journal of International Law, Spring 2004, Vol. 36 Issue 2/3, p. 103–147. Schmidt, Christopher J. and David A. Klinger. ‘‘Altering the Posse Comitatus Act: Letting the Military Address Terrorist Attacks on U.S. Soil.’’ 39 Creighton L. Rev. 667, April 2006. Schuck, Peter H. Symposium: Rebuilding Nation Building: ‘‘Federalism’’ 38 Case W. Res. J. Int’l L. 5, 2006. Sepper, Elizabeth. ‘‘The Ties That Bind: How the Constitution Limits the CIA’s Actions in the War on Terror.’’ NYU L. Rev. October 17, 2006. Swire, Peter P. ‘‘Privacy and Information Sharing in the War on Terrorism.’’ 51 Vill. L. Rev. 951, 2006. Warner, Michael. ‘‘Legal Echoes: The National Security Act of 1947 and the Intelligence Reform and Terrorism Prevention Act of 2004.’’ 17 Stan. L. & Pol’y Rev. 303, 2006. Wheaton, Kristan J. and Michael T. Beerbower. ‘‘Towards a New Definition of Intelligence.’’ Symposium: Spies, Secrets, and Security. ‘‘The New Law of Intelligence: Intelligence Reform.’’ 17 Stanford L. and Pol’y Rev. 319, 2006.

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Index Afghanistan, 14 Air Force doctrine, 96 Air Force Doctrine Document (AFDD). See Air Force doctrine Al Qaeda, 2, 3, 4, 13, 99 al-Zawahiri, 14 Anti-Terrorism Task Forces, 125 AO. See area of operation approaches (regions), homeland security, 110 appropriateness-of-means standard, 54 area of operation, 102 Armed Forces, 10, 44, 48, 110; organization and structure of, 49–50 Army doctrine, 96 Assistant Secretary of Defense for Homeland Defense and America’s Security Affairs, 114 Attorney General Procedures on Intelligence Sharing (2002), 92 Bill of Rights, 7, 68 Bin Laden, Osama, 5, 14, 15 Bush, George W., 42, 43, 77, 82, 132

capstone publications, 97, 98 catastrophic terrorism, 14 Center for International Development and Conflict Management (CIDCM), 35 Chairman of the Joint Chiefs of Staff (CJCS), 113, 135 civil authorities, 33 civil defense, 136–37 civil defense emergency, 59 civil emergency, 57 civil liberties, 6 civil support (CS), 10, 110, 111, 114, 115–16, 119 civil wars, 38 civilian control, 67; by civilians, 69; of military at national level, 67; at state level, 68 civil-military understanding, 33 Clausewitz, Carl von, 15, 18, 19, 20, 38 Coast Guard doctrine, 96 Coast Guard Publication (CGP). See Coast Guard doctrine

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Index Cold War, 5, 18, 35 Commander, U.S. Northern Command, 113 Committee on Foreign Intelligence, 132 Committee on Transnational Threats, 132 conflict, 4, 20; protracted, 31 consequences management (CM), 137 constructivism, 17 continuity of government (COG), 61, 138 continuity of operations (COOP), 61, 138 conventional war, 4; paradigm, 16, 18– 20, 21 cooperation, 26 Correlates of War (COW) project, 35 counterintelligence, 76 counterinsurgency (COIN), 2, 5, 28, 34, 99–109, 115–16, 117–19; Armed Force operation, 99; characteristics, 30–31; civilian-military effort, 100–101; forces, 33; integration, 101; intelligence cycle, 104–5; intelligence in, 104; military and nonmilitary relationships, 103; military and police, coordinating mechanisms for, 103; military support in, 102–3; phases, 31–32 police in, 102; unity of command, 102–3; unity of effort, 103–4 counteroffensive, 26 Criminal Intelligence Coordinating Council (CICC), 124 criminal law and police powers, 53 crisis management (CrM), 137 critical mission areas, 77 Cuban Revolution, 27 The Declaration of Independence, 65 Defense Counterintelligence Field Activity (CIFA), 85 Defense Intelligence Agency (DIA), 80, 85 defense planning, at DOD, 134

democratic deficit, 37 Department of Defense (DOD), 61, 62, 85, 110, 115, 131 Department of Homeland Security (DHS), 85, 131, 137; fusion centers, 129 Department of Justice (DOJ), 61, 92 diaspora communities, 13, 38 Director of National Intelligence, 132 doctrinal publications, 96–97 Doctrine for the Armed Forces of the United States (JP 1 doctrine), 98 domestic counterterrorism, 78 DOTMLPF, 96 emergency management, Armed Force operation, 99 emergency preparedness, 56, 57, 110; planning, 131, 136–37 EO 12656, 61, 136, 138 Federal Bureau of Investigation (FBI), 63, 84–85, 129 Federal Civil Defense Act (1950), 59 Federal Emergency Management Agency (FEMA), 56, 58, 61–62, 131, 136; fusion centers, 129 federal judiciary, 47–48 Federal Preparedness Circular, 138 Federal Response Plan, 138 federalism principle, 7, 42; civil defense emergency, 59; civil emergency, 57; FEMA, 61–62; law enforcement assistance, states requesting, 57–58; police powers, 51–57; Posse Comitatus Act (1878) (PCA), 59–60, 147–49; presidential assistance, states requesting, 58–59; separation of civilian and military sector principle, 64–72; state security forces, 62–63 The Federalist Papers, 65 Field Manual. See Army doctrine foreign intelligence, definition, 76 Foreign Intelligence Surveillance Act (FISA), 81, 82, 92

Index forward regions, homeland security, 110 full spectrum of operations, 99, 187–88 Fusion Center Guidelines, 122, 124 fusion centers. See state fusion centers General Services Administration (GSA), 137 GEOINT. See IMINT Giap, Vo Nguyen, 24, 26–27 Global Advisory Committee (GAC), 124 Global Intelligence Working Group, 124 Global Justice Information Sharing Initiative, 124 globalization, 5, 17, 35, 36–37; affecting power structure, 37; defined, 36; impacting governance, 37 Goldwater-Nichols Act, 65, 67 governance, globalization impacting, 37 guerilla warfare, 22, 23, 26; views of Mao Tse-tung, 23–24; comparison with traditional army, 29; urban, 23, 28 Guevara, Che, 24, 26, 27 Ho Chi Minh, 26 homeland, definition, 110 homeland defense (HD), 10, 110, 111, 115–16, 119 Homeland Security, 109–10, 115–16; civil support, 111–12; civil-military relationships, 112; command relationships, 112–13; domestic emergencies, support in, 111; emergency preparedness, 112; homeland defense, 111; law enforcement, support to, 111–12 Homeland Security Act of 2002, 84, 92, 125, 128 Homeland Security Advisory Council (HSAC), 134

Homeland Security Council (HSC), 114, 131, 133–34 homeland security doctrine, 10 Homeland Security Presidential Directive 5 (HSPD-5), 137 HUMINT, 80, 105 identity politics, 38 IMINT, 80 Implementing Recommendations of the 9/11 Commission Act of 2007, 120, 126 indications and warnings intelligence, 83 information sharing: decisions on, 189– 95; environment, 92–94; post-9/11 efforts to achieve, 90–92 Information Sharing Policy Coordination Committee (ISPCC), 127–28 insurgency, 4–5, 13, 20, 33, 100; characteristics, 21–24; defined, 21; forces, 28–29; protracted war, 25– 28; strategies, 24–25; terrorism and guerilla warfare for, 14 insurgent terrorism, 23 intelligence, 8, 9, 11, 99; activities and changed war paradigm, mismatch between, 11; characterization of, 9; cycle, 85–86; in counterinsurgency, 104; doctrine, 97; enterprise, 138; intelligence collaboration, 105–9; intelligence cycle, 104–5; legal meaning of, 75–76; and military doctrine, 10; planning, 131–32, 138; reform, 120; role of, 114–16; unity of effort in, 6; and war, 75–77; and warning, 78 intelligence preparation of the battlefield (IPB), 106 Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), 93, 125–26, 128 intelligence sharing, 117; by and with state fusion centers, 123–27 interagency relationships, 113–14

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270

Index international relations (IR) theory, 17, 34 international terrorism, 22 interstate commerce, 56 interstate war, 38 irregular warfare, 10, 136 Joint Analysis Centers (JAC), 85 Joint Chiefs of Staff (JCS), 50, 67, 96, 131 joint doctrines, 96–98; war planning, 135–36 joint force commanders (JFC), 116 Joint Intelligence, 116–19 Joint Intelligence Centers, 85 Joint Intelligence Task Force for Combating Terrorism, 85 joint interagency coordination groups (JIACGs), 114 Joint Military Intelligence Center, 85 Joint Military Intelligence Program (JMIP), 87, 88–89 Joint Operations, 98–99; intelligence, 99; principles of, 181–82; unity of effort, 99 Joint Publication (JP). See joint doctrines Joint Staff, 10 Joint Terrorism Task Forces, 125 JP 1 doctrine, 98 JP 2-0 doctrine, 116–17 JP 3-0 doctrine. See Joint Operations JP 3-24. See counterinsurgency (COIN) JP 3-26. See Homeland Security JP 3-27, 110 JP 3-28, 110 judicial deference to the military, 69 keystone publications, 97, 98–99, 116–17 law-enforcement emergency, 57 Lawrence, T. E., 24, 202n68 legitimacy, 5, 21, 31, 39; of government and insurgency, 22 Lenin, Vladimir, 24 Levi Guidelines, 91

localization, 36 low-intensity conflicts. See civil wars manmade disasters, 59 Mao Tse-tung, 15, 24; insurgent strategies and, 24–25; views on guerilla warfare, 23–24 Marighella, Carlos, 24, 26, 27–28 Marine Corps Doctrinal Publication (MCDP). See Marine Corps doctrine Marine Corps doctrine, 96 Marine Corps Warfighting Publications (MCWPs), 96 MASINT, 80, 81 military, in COIN, 102–3; and nonmilitary relationships, 103; and police, coordinating mechanisms for, 103 military assistance, to law enforcement, limits on, 59–60 military doctrine, 10–11, 96, 135–36 Military Intelligence Program (MIP), 87 military professionalism, 66 military separatism, 70 militia, 26, 68 Minimanual of the Urban Guerilla, 27 Napolitano, Janet, 3 The Nation in Arms, 20 National Commission on Terrorist Attacks Upon the United States, 12 National Counterterrorism Center (NCTC), 84 National Criminal Intelligence Sharing Plan, 124 National Emergency Act, 43, 44–45 national government, powers, 43–48 National Guard, 62, 63, 113 National Incident Management System (NIMS), 131, 137 national intelligence, 77 National Intelligence Estimate (2007), 4 National Intelligence Program (NIP), 87, 88–89 National Intelligence Strategy of the United States of America, 138

Index National Joint Terrorism Task Force (JTTF), 84 National Military Intelligence Production Center, 85 National Military Joint Center (NMJC), 85 National Response Plan (NRP), 58, 131, 137 national security, 18 National Security Act, 66, 67, 75–76, 83, 120–21, 132 National Security Council (NSC), 131, 132, 136; Deputies Committee (NSC/ DC), 132; Policy Coordination Committees (NSC/PCCs), 132–33; Principals Committee (NSC/PC), 132 national security emergency, 59 National Security Presidential Directives (NSPDs), 132 National Security Strategy, 77, 138 National Strategy for Homeland Security, 77, 110 nation-state, 4, 13, 33, 36, 39; conventional threat and, 16–18; pressure upon, 37; and threat paradigm, 14; war and, 15 natural disasters, 59 Naval Doctrinal Publication (NDP). See Naval doctrine Naval doctrine, 96 new response paradigm, 6 new war literature, 37–38 9/11 Commission, 6, 10; characterization of threat, 13; Report, 3, 4, 13, 14 nonstate actors, 22 North American Aerospace Defense Command (NORAD), 85 North Vietnam, 27 NORTHCOM (U.S. Northern Command), 49–50, 85, 136 Obama, Barack, 3, 132 offensive, 26 Office of Homeland Security, 133 Office of National Security Coordination (ONSC), 61

Office of the Director of National Intelligence (ODNI), 93; fusion centers, 129 On War, 18 operating environment (OE), 99, 183–86; defining, 106; describing effects, 106–7 operational intelligence, 116 OSINT, 80, 81 Peace and Conflict series, 35 people’s war, 38–39 PHOTINT. See IMINT planning, 11 police, in COIN, 102; and military, coordinating mechanisms for, 103 police powers, 7, 51–57; of national government, 54–56; 10th amendment and limitations, 52–54; and threats, 56 political Islam, radical, 13, 14 political partisan, 28 political power, 22, 37 political-military strategy, 6, 33, 100 Posse Comitatus Act (1878) (PCA), 7, 59–60, 147–49 postmodern war, 38 Powell, Colin, 65 power, 17; of Congress, 43–44; implied, 46; police, 51–57; political, 22; of President, 45–46; of state, 22, 29, 33; structure, globalization affecting, 37; types, 6–7; vacuum, 35 Preamble, U.S. Constitution, 41–42 President’s Homeland Security Advisory Council (PHSAC), 134 presidential assistance, states requesting: with civil authorities, 58; with military authorities, 58–59 Presidential Decision Directive, 61, 138 presidential directives, 132 presidential powers, 45–46; limits to, 46–47 Program Manager of the ISE (PM-ISE), 93

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272

Index protracted war theory, 25–28 psychological war. See war of nerves Quadrennial Defense Review (QDR), 134 reasonableness, requirement of, 53 regional information sharing system (RISS), 125 religion, threat paradigm, 14 reserved powers of the states, 51 revolutionary war, 25, 27; aim of, 26; phases, 25–26. See also insurgency Roosevelt, President, 66 Rice, Condoleezza, 4, 13 Secretary of Defense, 67, 112 Secretary of War, 67 security, 18, 41–42 security environment, 3–6; post-Cold War and post-9/11 comparison, 135 security planning, 131, 132–34 Senior Advisory Committees (SACs) for Homeland Security, 134 separation of civilian and military sector principle, 7, 42, 64–72; court role in, 69–72; separation and control, achieving, 66–68 separation of powers principle, 6, 42, 43–51; Armed Forces of the United States, 48–50; Congressial powers, 44; national government powers, 43– 48; War Powers Resolution, 44 services doctrines, 96 SIGINT, 80 small wars, 19, 20 small wars battlespace, 39 sovereignty, 3, 16; external, 46 Stafford Act, 57 state active duty forces, 62 state civil defense acts, 56 state defense forces, 63 state fusion centers, 11, 84, 120–30; definition, 121–23; and intelligence sharing, 123–27 state militias, 62, 68

state power, 22 state security forces, 62–63 ‘‘stovepipe’’ problem, 83–84 strategic defense, 26 Strategic Information and Operations Center (SIOC), 84 tactical intelligence, 116 Tactical Intelligence and Related Activities (TIARA), 87–89 Terrorism Early Warning Groups, 125 Terrorism Screening Center, 84–85 Terrorism Surveillance Program (TSP), 153 Terrorist Threat Integration Center, 127 threat evaluation, 107–109 threat paradigm, 10, 13–15, 34; contemporary conditions, 34–39; conventional war paradigm, 18–20; counterinsurgency characteristics, 30–32; counterinsurgent forces, 33; insurgency, 20–28; insurgent forces, 28–29; nation-state and conventional threat, 16–18; radical political Islam and, 14–15; religion and, 14; telecommunications technology and, 14; unconventional war paradigm, 30 Title 10, 68; forces, 63 Total War, 20 transnational terrorism, 22 Trinitarian War, 18, 20 Truman, President, 46 Ultraterrorism, 14 unconventional war. See insurgency Uniform Code of Military Justice (UCMJ), 70 unity of command, 102–3 unity of effort, 103–4 unity of effort in intelligence, 6 urban guerilla warfare, 23, 28 U.S. Army and U.S. Marine Corps, 10

Index U.S. Constitution, 6–7, 41; Armed Forces of the United States, 48–50; federalism principle, 51–64; separation of powers principle, 43–51; threats, 41–43 U.S. intelligence community (USIC), 1, 2, 8, 9, 10, 63, 75, 96, 116, 120; activities of, 76–85; analysis, 83; budget, 87; dissemination, 83–85; domestic counterterrorism, 78; emergency preparedness and response, 78; FISA, 81; FISA collection authority expansion, 81–82; HUMINT, 80; IMINT, 80; information collection, 79; intelligence and warning, 78; MASINT, 80, 81; members, 159–79; organization and structure, 86–90; OSINT, 80, 81; permissible domestic collection, 81; processing and exploitation, 82; requirements, 77; SIGINT, 80; terrorism surveillance program, 82 U.S. law. See U.S. Constitution

USA Patriot Act, 81, 91, 125 USSR, 27 Van Creveld, Martin, 20 Viet Cong, 26, 27 Vietnam War, 26 violence, 4, 22; organized, 16, 38; reliance on, 27 the ‘‘wall’’, 91–92 war, 6, 15, 115–16; conventional paradigm, 16, 17, 18–20; deinstitutionalization of, 38, 39; modern, 16, 19; of nerves, 27–28; paradigms, 143–45; planning, 131, 135–36; powers, 43, 44; on terrorism, 3; typology, 35 War Powers Resolution, 44 wars of the third kind, 38 weapon of mass destruction (WMD), 61 What Must Be Done, 24 White House, 133 Wilson, President, 66 World Trade Center bombings, 3

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About the Author Louise Stanton is Adjunct Professor in the Department of Politics masters program at New York University. She is also Assistant Professor and Director of Pre-Law Advising at New Jersey City University in Jersey City, New Jersey, and teaches online for American Public University System. She received her PhD in Global Affairs from Rutgers University in 2007. A lawyer, Dr. Stanton received a BA degree in political science from Georgetown University, and a JD from Seton Hall University School of Law. Prior to joining the academic sector, she practiced law, and served in the public sector. Dr. Stanton is a member of the International Studies Association, American Political Science Association, and Women in International Security.