Federal Disaster Planning
The terrorist attacks of September 11, 2001 prompted new thinking about disaster preparedness and response within the US federal government. A series of independent and congressional investigations resulted in calls for reform in both intelligence and domestic security. The result of the later calls was the creation of the Department of Homeland Security which took over all or part of about 16 federal organizations including the Federal Emergency Management Agency. Thus homeland security was to encompass the preparation, protection, and response to an entire range of threats ranging from terrorism to natural disasters.
President Bush ordered the creation of improved national emergency management processes in the landmark document "Homeland Security Presidential Directive Five." (Access this URL for the full text http://www.whitehouse.gov/news/releases/2003/02/20030228-9.html.)
Read the following excerpt from HSPD 5 to understand its purpose and scope.
Homeland Security Presidential Directive/HSPD-5
Subject: Management of Domestic Incidents
Purpose
(1) To enhance the ability of the United States to manage domestic incidents by establishing a single, comprehensive national incident management system.
Definitions
(2) In this directive:
- The term "Secretary" means the Secretary of Homeland Security.
- The term "Federal departments and agencies" means those executive departments enumerated in 5 U.S.C. 101, together with the Department of Homeland Security; independent establishments as defined by 5 U.S.C. 104(1); government corporations as defined by 5 U.S.C. 103(1); and the United States Postal Service.
- The terms "State," "local," and the "United States" when it is used in a geographical sense, have the same meanings as used in the Homeland Security Act of 2002, Public Law 107-296.
Policy
(3) To prevent, prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies, the United States Government shall establish a single, comprehensive approach to domestic incident management. The objective of the United States Government is to ensure that all levels of government across the Nation have the capability to work efficiently and effectively together, using a national approach to domestic incident management. In these efforts, with regard to domestic incidents, the United States Government treats crisis management and consequence management as a single, integrated function, rather than as two separate functions.
(4) The Secretary of Homeland Security is the principal Federal official for domestic incident management. Pursuant to the Homeland Security Act of 2002, the Secretary is responsible for coordinating Federal operations within the United States to prepare for, respond to, and recover from terrorist attacks, major disasters, and other emergencies. The Secretary shall coordinate the Federal Government's resources utilized in response to or recovery from terrorist attacks, major disasters, or other emergencies if and when any one of the following four conditions applies:
- A Federal department or agency acting under its own authority has requested the assistance of the Secretary;
- The resources of State and local authorities are overwhelmed and Federal assistance has been requested by the appropriate State and local authorities;
- More than one Federal department or agency has become substantially involved in responding to the incident; or
- The Secretary has been directed to assume responsibility for managing the domestic incident by the President.
(5) Nothing in this directive alters, or impedes the ability to carry out, the authorities of Federal departments and agencies to perform their responsibilities under law. All Federal departments and agencies shall cooperate with the Secretary in the Secretary's domestic incident management role.
(6) The Federal Government recognizes the roles and responsibilities of State and local authorities in domestic incident management. Initial responsibility for managing domestic incidents generally falls on State and local authorities. The Federal Government will assist State and local authorities when their resources are overwhelmed, or when Federal interests are involved. The Secretary will coordinate with State and local governments to ensure adequate planning, equipment, training, and exercise activities. The Secretary will also provide assistance to State and local governments to develop all-hazards plans and capabilities, including those of greatest importance to the security of the United States, and will ensure that State, local, and Federal plans are compatible.
(7) The Federal Government recognizes the role that the private and nongovernmental sectors play in preventing, preparing for, responding to, and recovering from terrorist attacks, major disasters, and other emergencies. The Secretary will coordinate with the private and nongovernmental sectors to ensure adequate planning, equipment, training, and exercise activities and to promote partnerships to address incident management capabilities.
(8) The Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States, subject to the National Security Act of 1947 and other applicable law, Executive Order 12333, and Attorney General-approved procedures pursuant to that Executive Order. Generally acting through the Federal Bureau of Investigation, the Attorney General, in cooperation with other Federal departments and agencies engaged in activities to protect our national security, shall also coordinate the activities of the other members of the law enforcement community to detect, prevent, preempt, and disrupt terrorist attacks against the United States. Following a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice. The Attorney General and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments.
(9) Nothing in this directive impairs or otherwise affects the authority of the Secretary of Defense over the Department of Defense, including the chain of command for military forces from the President as Commander in Chief, to the Secretary of Defense, to the commander of military forces, or military command and control procedures. The Secretary of Defense shall provide military support to civil authorities for domestic incidents as directed by the President or when consistent with military readiness and appropriate under the circumstances and the law. The Secretary of Defense shall retain command of military forces providing civil support. The Secretary of Defense and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments.
(10) The Secretary of State has the responsibility, consistent with other United States Government activities to protect our national security, to coordinate international activities related to the prevention, preparation, response, and recovery from a domestic incident, and for the protection of United States citizens and United States interests overseas. The Secretary of State and the Secretary shall establish appropriate relationships and mechanisms for cooperation and coordination between their two departments.
(11) The Assistant to the President for Homeland Security and the Assistant to the President for National Security Affairs shall be responsible for interagency policy coordination on domestic and international incident management, respectively, as directed by the President. The Assistant to the President for Homeland Security and the Assistant to the President for National Security Affairs shall work together to ensure that the United States domestic and international incident management efforts are seamlessly united.
(12) The Secretary shall ensure that, as appropriate, information related to domestic incidents is gathered and provided to the public, the private sector, State and local authorities, Federal departments and agencies, and, generally through the Assistant to the President for Homeland Security, to the President. The Secretary shall provide standardized, quantitative reports to the Assistant to the President for Homeland Security on the readiness and preparedness of the Nation — at all levels of government — to prevent, prepare for, respond to, and recover from domestic incidents.
(13) Nothing in this directive shall be construed to grant to any Assistant to the President any authority to issue orders to Federal departments and agencies, their officers, or their employees.
Tasking
(14) The heads of all Federal departments and agencies are directed to provide their full and prompt cooperation, resources, and support, as appropriate and consistent with their own responsibilities for protecting our national security, to the Secretary, the Attorney General, the Secretary of Defense, and the Secretary of State in the exercise of the individual leadership responsibilities and missions assigned in paragraphs (4), (8), (9), and (10), respectively, above.
(15) The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Incident Management System (NIMS). This system will provide a consistent nationwide approach for Federal, State, and local governments to work effectively and efficiently together to prepare for, respond to, and recover from domestic incidents, regardless of cause, size, or complexity. To provide for interoperability and compatibility among Federal, State, and local capabilities, the NIMS will include a core set of concepts, principles, terminology, and technologies covering the incident command system; multi-agency coordination systems; unified command; training; identification and management of resources (including systems for classifying types of resources); qualifications and certification; and the collection, tracking, and reporting of incident information and incident resources.
(16) The Secretary shall develop, submit for review to the Homeland Security Council, and administer a National Response Plan (NRP). The Secretary shall consult with appropriate Assistants to the President (including the Assistant to the President for Economic Policy) and the Director of the Office of Science and Technology Policy, and other such Federal officials as may be appropriate, in developing and implementing the NRP. This plan shall integrate Federal Government domestic prevention, preparedness, response, and recovery plans into one all-discipline, all-hazards plan. The NRP shall be unclassified. If certain operational aspects require classification, they shall be included in classified annexes to the NRP.
- The NRP, using the NIMS, shall, with regard to response to domestic incidents, provide the structure and mechanisms for national level policy and operational direction for Federal support to State and local incident managers and for exercising direct Federal authorities and responsibilities, as appropriate.
- The NRP will include protocols for operating under different threats or threat levels; incorporation of existing Federal emergency and incident management plans (with appropriate modifications and revisions) as either integrated components of the NRP or as supporting operational plans; and additional operational plans or annexes, as appropriate, including public affairs and intergovernmental communications.
- The NRP will include a consistent approach to reporting incidents, providing assessments, and making recommendations to the President, the Secretary, and the Homeland Security Council.
- The NRP will include rigorous requirements for continuous improvements from testing, exercising, experience with incidents, and new information and technologies.
The National Response Plan
The National Response Plan is designed to be an all discipline, all hazards plan applicable to all members of the federal government involved in any way with domestic emergency preparedness and response. A working knowledge of the NRP is essential for all federal workers potentially involved in this area, as well as for state and local emergency management professionals, non-governmental organization leaders, and concerned citizens. As you review the NRP and subsequently the National Infrastructure Protection Plan, consider how geospatial intelligence capabilities might contribute to these efforts.
The National Infrastructure Protection Plan
The September 11 attacks also focused attention on the vulnerability of critical infrastructure and key resources (CI/KR) in the US to terrorist attack or exploitation. Critical infrastructure and key resources are those that are essential to national security, safety, and economic well being. The fear is that attacks on CI/KR could impact the ability of government and the economy to function and threaten the American way of life. Consider the far ranging damage to the national economy from the September 11 attacks. Not only did New York City sustain massive physical, psychological, and economic damage, but the damage to the national economy as evidenced by reduced air travel was substantial. The vulnerability of transportation systems, hazardous material facilities, and public water and food supplies are all areas of concern. This concern resulted in the National Infrastructure Protection Plan (NIPP).
Homeland Security versus Homeland Defense
The Department of Homeland Security (DHS) is responsible for a wide array of tasks that constitute "homeland security." The Department of Defense has its own mission of "homeland defense." To accomplish the homeland defense mission, DOD established US Northern Command (USNORTHCOM) headquartered at Peterson Air Force Base in Colorado. Given the traditional US commitment to civilian control over the military, and legitimate concerns about military activities at home impinging on civil rights, how should homeland security and homeland defense relate?
Map showing the area of responsibility of USNORTHCOM.
Homeland security is defined in the National Strategy for Homeland Security as, "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." Notice that this definition explicitly covers only terrorism and not natural or technological hazards. (This is one of the complaints about having FEMA under DHS. DHS is too focused on terrorism, even though disasters take more lives and cause more damage.) Thus it is the Department of Homeland Security's primary mission to prevent terrorist attacks within the US, and the Attorney General is responsible for investigating and prosecuting the perpetrators of terrorist attacks.
Homeland defense is defined as, "the protection of US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the President." The Department of Defense is responsible for homeland defense. However, we know that the DOD has an enormous budget and substantial capabilities to assist in domestic disaster response. Witness the resources brought to bear by LTG Raymond Honore, "The Rag'in Cajun" and his federal military task force during the response to Hurricane Katrina.
The Department of Defense is allowed to support civil authorities in domestic emergencies when authorized by the President. Defense support to civil authorities, usually referred to a "civil support," is any DOD support for domestic emergencies, and designated law enforcement activities. Examples include federal troops restoring order during the Los Angeles Riots and DOD support for Hurricane Katrina. Civil support can include military forces, DOD civilian and contract personnel, and DOD agency and component assets.
As we will see in the next lesson, DOD agencies such as the National Geospatial Intelligence Agency provide essential geospatial intelligence support to FEMA and state and local agencies. The issue of classified sources and methods poses issues for such cooperation, as does the pre-dominantly military focuse and culture of NGA. We will examine in the next lesson how NGA attempts to overcome these challenges.
For those students who are particularly interested or involved in this topic, you may want to look at the following Joint Publications:
- Joint Publication 3-26 Homeland Security
- Joint Publication 3-27 Homeland Defense
- Joint Publication 3-28 Civil Support
A word of clarification is in order concerning the National Guard versus federal forces. National Guard forces (Army and Air National Guard) are organized by state and territories and are normally under the control of the state governor. This status is known as Title 32 after that section of the US Code that authorizes this arrangement. While in Title 32 status, Guardsmen serve at the direction of the governor and may carry out civil law enforcement functions such as crowd control and prevention of looting. National Guard units can be federalized by order of the President and used domestically or deployed overseas (e.g. Iraq and Afghanistan). The National Guard along with the federal Army, Navy, Air Force, and Marine Reserves constitute the Reserve Component. Federal forces are organized under Title 10 of the US Code. When Guard units are federalized they operate under Title 10. An important point is that Title 10 forces are prohibited from conducting civil law enforcement activities under Title 18 known as The Posse Comitatus Act of 1878. The exception to this law is in the event the President invokes the Insurrection Act which allows him to order federal forces to restore order. Note that the US Coast Guard in peacetime is subordinate to the Department of Homeland Security and may become subordinate to DOD in time of war (e.g. World War II). Read the following article for insights on Posse Comitatus in the post Katrina discussion on who should be in charge in a major national disaster.
DAILY BRIEFING
November 15, 2005Little law has big impact on use of military at home
By Sydney J. Freedberg Jr., National Journal
What is a posse comitatus, anyway?
This fine old scrap of Latin is invoked against any attempt to expand the military's role in domestic security. It came up in the drug wars of the 1980s, after 9/11, and most recently after Hurricane Katrina, when President Bush suggested "a broader role for the armed forces" in disaster relief. In the words of former Virginia Gov. James Gilmore, a Republican who chaired a commission championing state and local leadership in homeland security, "Posse comitatus stands for the principle that we should not use the military for law enforcement in this country."
Strip away the symbolism, however, and what remains is one obscurely worded sentence in Title 18 of the U.S. Code. As President Reagan's civil defense director, retired Army Col. John Brinkerhoff, wrote sarcastically in 2002, "Seldom has so much been derived from so little." The Posse Comitatus Act of 1878 threatens a prison term and fines — although no one has actually been charged in the law's 127-year history — against "whoever … uses any part of the Army … to execute the laws," unless, that is, they do so "under circumstances expressly authorized by … Act of Congress."
So what are those circumstances? The answer lies in an even older law, the Insurrection Act, whose earliest provisions date to 1792. George Washington, as president, used the act in 1794 to repress the Whiskey Rebellion in Pennsylvania. The act's provisions were successively broadened under Presidents Jefferson, Lincoln, and finally Grant: "Whenever the President considers that unlawful obstructions … make it impracticable to enforce the laws … by the ordinary course of judicial proceedings, he may … use such of the armed forces, as he considers necessary to enforce those laws."
Together, these two statutes open a loophole wide enough to march an army through — which is precisely what President Eisenhower did to integrate schools in Little Rock, Ark., in 1957; what President Johnson did to suppress the race riots of the 1960s; and what the elder President Bush did to suppress the riots following the Rodney King incident in Los Angeles in 1992. The New Orleans looting of 2005 could easily have been added to that list, said Vermont Law School professor Stephen Dycus, lead author of the best-selling casebook on national security law. "The president has all the authority he needs," Dycus says.
"That's the dirty little secret about the Posse Comitatus Act," agreed Timothy Edgar, national security policy counsel for the American Civil Liberties Union. "It really doesn't restrict very much."
And yet this slender reed of law has been made a pillar of democracy. Why? The answer lies in a 200-year history of American ambivalence about the military's role in domestic law enforcement, an ambivalence nowhere more pronounced than in the military itself.
The Posse Comitatus Act is named for what it specifically forbids: the early practice of posse comitatus, literally "the power of the county," by which shorthanded civilian law enforcement officials — a county sheriff in medieval England, a U.S. marshal in 19th-century America — could, in an emergency, deputize a posse of royal or federal troops from the nearest fort.
In the 19th-century United States, posse comitatus became entangled with the bitter issues of states' rights and race. Federal officials would deputize troops to enforce laws where the local authorities refused to. Such troops hunted fugitive slaves in the North before the Civil War and protected black voters in the South afterward. The cynical compromises of 1876-78 that ended Reconstruction also ended the deputizing of troops, by legislating criminal charges against any marshal who ever again called up soldiers for a posse.
That prohibition, however, never applied to a governor's calling up his own state's militia — what today is called the National Guard. Nor does it apply to federal troops that provide aid after disasters — search and rescue, medical care, food, etc. — as codified under the 1988 Stafford Act, which also created the Federal Emergency Management Agency. The prohibition does not even apply to federal troops' providing "support for civilian law enforcement," as long as they do not enforce the law themselves: 12 long sections of the U.S. Code (Title 18, Section 371-382), mostly passed during the "war on drugs," instruct the Defense Department to offer intelligence, training, and equipment, stopping short only of "direct participation by any member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity."
The military has always been ambivalent about such domestic duties. The 19th-century War Department issued orders restricting posse comitatus even before the 1878 ban, and the modern Defense Department has built up that one-line law into reams of regulations. "Posse comitatus is overused by the military to avoid missions they don't want," said retired Air Force Col. Randall Larsen, an outspoken homeland-security expert. A pair of Coast Guard lawyers, Capt. Gary Felicetti and Lt. Cmdr. John Luce, were even harsher in a 2004 article in the military magazine Parameters: "A misleading [Defense Department] regulation that requires an army of lawyers to navigate [is] used to ward off undesired and potentially resource-depleting missions."
Yet, at the same time, the military's Northern Command — in charge of protecting the U.S. homeland — plans for a possible leading role in "catastrophic" emergencies, and military manuals acknowledge the exception to the Posse Comitatus Act for "federal troops acting pursuant to the presidential power to quell insurrection."
The Insurrection Act is old-fashioned and blunt, starting with its title. "At least we ought to rename that; that's a minimum," implored Senate Armed Services Chairman John Warner, R-Va., the one legislator to press consistently, and fruitlessly, for changes to these laws. But the text itself stands out amid more-modern and more-modest sections of the U.S. Code like a Viking warrior at a tea dance. Title 10, Section 331, of the Insurrection Act simply permits the president to send federal troops to the aid of a state government. Section 332, a little stronger, allows the president to send troops even without the state's invitation. Section 333 specifically authorizes federal intervention if state authorities "fail or refuse" to protect the rights of any citizens group. These clauses, Dycus said, "provide the president with all the authority he could ever want to use military forces for law enforcement, quarantines, and so on."
The only limit is a single sentence at the end — Title 10, Section 334 — that requires the president first, before he uses the military, to publicly order any insurgents to disperse. This one formality is critical, Dycus insists. Without this proclamation clause, the president could delegate to some unelected official the Insurrection Act's authority to declare an emergency and to enforce the law with troops. Similarly, without the narrowly tailored Posse Comitatus Act in place, any U.S. marshal could call in the troops even when there was no emergency at all.
But as the laws now stand, Dycus said, "the key point is that it is the president's call. He's got to make a public pronouncement; he has to take a public position and face the political consequences. The genius in this arrangement — which gives the president extremely broad authority — is that it also includes political accountability for the highest elected official in the country." If that makes presidents think twice, perhaps it's just as well.
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